Opinion
June 22, 1990
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Dillon, P.J., Denman, Pine, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment. On the record before us, it cannot be said that defendant established, as a matter of law, that plaintiff's accident did not occur on defendant's property or, assuming that the accident did occur on its property, that plaintiff's use of the property was not foreseeable or that plaintiff's negligence was the sole proximate cause of his injuries (see, Basso v. Miller, 40 N.Y.2d 233, 241). Further, General Obligations Law § 9-103 is not a bar to plaintiff's action because defendant's property is not "the sort which the Legislature would have envisioned as being open up to the public for recreational activities as a result of the inducement offered in the statute" (Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 45).