Macey v. Truman , 511 N.Y.S.2d 158 ( 1987 )

Kane, J. P., and Casey, J.,

dissent and vote to reverse in a memorandum by Casey, J. Casey, J. (dissenting). Contrary to the position of the majority, we cannot read our decision in Schoonmaker v Ridge Runners Club 99 (119 AD2d 858, appeal dismissed 68 NY2d 807) as support for Special Term’s denial of summary judgment to this defendant. Accordingly, we respectfully dissent.

In Schoonmaker the principal issue was the applicability of General Obligations Law § 9-103, a statute not involved here. We refused to apply section 9-103 in Schoonmaker due to the payment of a monetary consideration which triggered the statutory exception provided in section 9-103 (2) (b). True, we found a question of fact existed as to the liability of the corporate defendant club, but our holding there was based largely on the fact that the individually named defendants who actually participated with the plaintiff in the cutting of trees were members of the defendant club, so their participation, if negligent, could be imputable to the corporate defendant. This is far from the situation here, for concededly this defendant landowner, an individual, did not participate in any way in the cutting or felling of the trees. This defendant’s participation ended with his alleged involvement in the selection of the trees to be cut. Plaintiff claims that defendant’s participation in the selection process is sufficient to raise a factual question as to his liability, precluding the grant of summary judgment to defendant. It is this claim adopted by the majority that has prompted our dissent. In our view, plaintiff’s injury was proximately caused solely by the method and manner in which he and his companions decided to fell the trees and to disengage them when they became hung up.

Plaintiff has failed to show how defendant’s participation in the selection process or otherwise breached defendant’s duty of reasonable care to plaintiff and proximately caused or contributed to the happening of plaintiff’s accident in any why. In response to defendant’s showing in support of his motion for summary judgment, plaintiff was required to tender proof in hdmissible form to establish the existence of a triable issue of fact (see, Vermette v Kenworth Truck Co., 68 NY2d 714), which plaintiff here has utterly failed to do. Defendant’s motion for summary judgment should have been granted.