Hirsch v. Rule

—Judgment and order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs commenced this action to recover for injuries they allegedly sustained when their snowmobile collided head on with another snowmobile. Plaintiffs allege that defendants TriCounty Drift Hoppers, Inc. (Tri-County), Sardinia Snowmobile Club, Inc. (Sardinia), and Erie County Federation of Snowmobile Clubs (ECFOSC) were negligent in failing to properly design, maintain, mark and sign the trail where the accident occurred. Those defendants moved for summary judgment dismissing the complaint against them on the ground that they had no responsibility or control over the site of the accident. Supreme Court granted the motion in part by dismissing the complaint against Tri-County. The court properly granted that part of the motion seeking dismissal of the complaint against Tri-County but erred in denying that part of the motion seeking dismissal of the complaint against ECFOSC. The proof submitted in support of the motion establishes as a matter of law that both Tri-County and ECFOSC “had no control over the accident site, and the plaintiffs did not submit legally sufficient evidence to create a question of fact as to that issue or to otherwise establish [the] potential liability [of either Tri-County or ECFOSC] for the accident” (Roux v Patrick, 226 AD2d 695, 696). The court, however, properly denied that part of the motion seeking dismissal of the complaint against Sardinia. Arguably, a triable issue of fact exists whether Sardinia exercised control over the accident site. We therefore modify the judgment and order by granting that part of the motion seeking dismissal of the complaint against ECFOSC. (Appeals from Judgment and Order of Supreme Court, Erie County, Howe, J. — Summary Judgment.) Present — Green, J. P., Lawton, Hayes, Pigott, Jr., ánd Balio, JJ.