Ronald Bragg, Appellant, v. Genesee County Agricultural Society et al.,
  Respondents

    84 N.Y.2d 544, 644 N.E.2d 1013, 620 N.Y.S.2d 322 (1994).
    December 8, 1994

   4 No. 176 (1994 NY Int. 207) Decided December 8, 1994
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   This opinion is uncorrected and subject to revision before publication
   in the New York Reports.

   Kevin J. Bauer, for appellant.
   Erin M. Peradotto, for respondents.

   SIMONS, J.:

   Defendant Genesee Agricultural Society is the owner of an abandoned
   railway bed that runs from Batavia to Lockport. In 1988 defendant
   Lathan, the Society's president, made an oral agreement with a
   trucking company to excavate gravel from the railbed. Lathan selected
   the site for the excavation and, though aware that off-road vehicles
   used the property, he did not instruct the contractor to post warning
   signs or barriers in the area. By September 1990, when this accident
   occurred, the contractor's activities had left an opening in the
   railbed which was 10 feet deep and dropped from the trail at an angle
   of approximately eighty degrees. Plaintiff Bragg was injured while
   traveling on the railbed when he drove his motorbike into the
   excavation.

   Plaintiff instituted this action seeking damages for his injuries and
   defendants responded by asserting the provisions of General
   Obligations Law § 9-103 as a defense. That statute grants immunity for
   ordinary negligence to landowners who permit members of the public to
   come on their property to engage in several enumerated recreational
   activities, including motorbiking. Plaintiff moved to dismiss the
   defense but Supreme Court denied his motion and granted defendants'
   cross motion for summary judgment. It concluded that the statute
   applied and that plaintiff had failed to present evidence to support
   his further claim that defendants had acted willfully or maliciously
   and had therefore lost the statutory immunity (see, General
   Obligations Law § 9-103(2)(a)). The Appellate Division affirmed.

   Plaintiff contends that defendants are not entitled to the protection
   afforded by the statute because the property was not suitable for
   motorbiking under the rule set forth in Iannotti v Consolidated Rail