(dissenting). I agree with the majority that General Obligations Law § 9-103 is not limited to wilderness, remote or undeveloped land. I further agree that the test as to whether the property should be afforded the protection of the *68statute is whether it is "of the type that would ordinarily be frequented by sportsmen engaged in the * * * listed activities” (Ferres v City of New Rochelle, 68 NY2d 446, 453). Among the numerous activities listed in the statute are hunting, fishing, trapping, cross-country skiing, motorized vehicle operation for recreational purposes and snowmobile operation (General Obligations Law § 9-103 [1] [a]). Railroad rights-of-way are used extensively by sportsmen, sometimes in wilderness areas and sometimes in more populous areas, for these various activities. Nothing in the statute indicates that such property should be excluded from consideration merely because it is owned or controlled by a railroad company.
The mere fact that this property has a commercial use should not automatically result in General Obligations Law § 9-103 being inapplicable. The focus should be upon the purpose for which the injured party was using the property. Here, it is undisputed that the main use for the property was a commercial one, i.e., providing railroad transportation. This does not, however, detract from the fact that the property was also suitable for recreational use. Indeed, plaintiffs use of the property and his injury were totally unrelated to defendant’s commercial use. Defendant did not gain any commercial profit from allowing plaintiff, or others like him, tó use its right-of-way. Plaintiff was on the property for the purpose of pursuing a recreational activity as defined in the statute.
The Court of Appeals has indicated that General Obligations Law § 9-103 may be considered when an individual is injured while upon railroad property for a recreational purpose (see, Merriman v Baker, 34 NY2d 330, 333-334). When faced with a case with virtually identical facts to the one at bar, Supreme Court found the statute applicable in Cassella v Delaware & Hudson Ry. Co. (133 Misc 2d 128). Further, it merits noting that courts construing similar recreational use statutes in other jurisdictions have likewise found those statutes applicable when individuals were on railroad property pursuing recreational activities (see, e.g., Power v Union Pac. R. R. Co., 655 F2d 1380, 1386-1388; Lovell v Chesapeake & Ohio R. R. Co., 457 F2d 1009, 1010; Lostritto v Southern Pac. Transp. Co., 73 Cal App 3d 737, 746-747, 140 Cal Rptr 905; see generally, Annotation, Effect of Statute Limiting Landowner’s Liability for Personal Injury to Recreational User, 47 ALR4th 262).
I would hold that General Obligations Law § 9-103 is appli*69cable in the instant case. Under that statute, a landowner is liable "for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (General Obligations Law § 9-103 [2] [a]). Since plaintiff alleged only negligence in his complaint and failed to allege a breach of the standard set forth in General Obligations Law § 9-103,1 would reverse Supreme Court’s order and grant defendant’s motion for summary judgment dismissing the complaint.
Yesawich, Jr., and Mercure, JJ., concur with Casey, J. P.; Harvey, J., dissents and votes to reverse in an opinion.
Order affirmed, with costs.