The opinion
Cardona, P. J. (dissenting).
We respectfully dissent.
*130 We do not agree with the majority’s conclusion that the property at issue is suitable for the public to pursue motorbiking as a form of recreation. Even assuming the existence of evidence of substantial public use * of both the excavated gravel mine and the landfill, such evidence does not automatically establish the property’s legal suitability for this purpose. If past public use is the key to determining suitability, then statutory immunity should be applied to all lands, without exception, as long as recreators, regardless of the risks involved, can demonstrate that the land is physically conducive to a listed recreational activity. This was not the view adopted by the plurality in lannotti v Consolidated Rail Corp. ( 74 NY2d 39 ; see, Bragg v Genesee County Agric. Socy., 84 NY2d 544, 549 ). In our view, the determination of whether a type of property is suitable for a particular activity involves an examination beyond whether it is physically conducive to that activity. To be suitable, the property must be of a type " 'which would be appropriate for public use in pursuing the activity as recreation’ ” (Bragg v Genesee County Agric. Socy., supra, at 548, quoting lannotti v Consolidated Rail Corp., supra, at 45). The question is not whether people are using the property for a statutory activity, but whether the property, based upon its general characteristics, should be opened to the public to pursue the particular activity. Clearly, there are private lands, like excavation pits, which are obviously unsuitable for motorbiking ( see, Bragg v Genesee County Agric. Socy., supra, at 547, n 1; Pulis v T. H. Kinsella, Inc., 156 Misc 2d 499 , affd on opn below 204 AD2d 976 ).
A construction and demolition debris landfill may contain a broad range of materials such as bricks, concrete, rock, land clearing debris, asphaltic pavement, glass, electrical wiring and pipe (see, 6 NYCRR 360-1.2 [b] [38]). Under the terms of the special permit issued to defendant Harlen W. Metz, Jr. to operate the mine and landfill, debris deposited in his landfill was only required to be compacted once a week and a soil cover of six inches applied on a biweekly basis. Recreators would obviously have to ride through areas of the landfill strewn with debris resting at or near the surface. Moreover, construc *131 tion and demolition debris landfills pose distinct fire hazards (see, 6 NYCRR 360-7.4 [a] [6] [vii], [ix]) as evidenced by the fires that occurred on the property in March 1991. The Department of Environmental Conservation recognized the unsuitability of this land for public use when it required Metz, in his special permit, to secure the land against public entry by erecting earthen berms and installing a front gate across the access road.
In our opinion, the landfill has physical attributes which render it, just like the excavation pit before it, inappropriate for public recreation irrespective of past use. For the above reasons, we find that the instant uncapped landfill is not the type of property which the Legislature envisioned as being inherently suitable for motorized vehicle operation for recreational purposes and, therefore, would hold that General Obligations Law § 9-103 does not bar plaintiffs action against Metz and defendant H.W. Metz General Contracting, Inc. (hereinafter collectively referred to as defendants).
Denial of immunity under General Obligations Law § 9-103 does not result in the automatic imposition of liability on the landowner (see, Bragg v Genesee County Agric. Socy., supra, at 551). Therefore, it is necessary to determine defendants’ claim that they are entitled to summary judgment under traditional negligence principles (see, Basso v Miller, 40 NY2d 233 ). On a motion for summary judgment "the court is obliged to draw all reasonable inferences in favor of the non-moving party, and may not pass on issues of credibility” (Rizzo v Lincoln Diner Corp., 215 AD2d 546 ; see, Negri v Stop & Shop, 65 NY2d 625 , 626). The function of summary judgment remains issue finding, rather than issue determination (see, Matter of Suffolk County Dept. of Social Servs. [Michael V.] v James M., 83 NY2d 178,182 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 ). Here, we cannot say that the examination before trial testimony of plaintiffs son fails to raise a triable question of fact (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 ; Barber v Daly, 185 AD2d 567, 569 ) as to whether defendants excavated a preexisting and frequently used dirt bike path, "suddenly and without warning”, prior to the accident. In our view, therefore, Supreme Court incorrectly granted summary judgment in favor of defendants.
Accordingly, we would modify by reversing so much of Supreme Court’s order as granted defendants’ motions for summary judgment dismissing the amended complaint against them.
*132 Mikoll and. Yesawich Jr., JJ., concur with Casey, J.; Car-dona, P. J., and Peters, J., dissent in a separate opinion by Cardona, P. J.
Ordered that the order is affirmed, with one bill of costs.
Initially, we cannot subscribe to the majority’s finding that dirt bike trails "covered” the four-acre landfill. Although at his examination before trial defendant Harlen W. Metz, Jr. acknowledged that he saw people riding trail bikes on property adjacent to his, he testified that he never saw anyone riding dirt bikes on his property, never saw anything that looked like a path or a dirt bike trail on his property and was never told by anyone that people were riding dirt bikes on his property.