Cassella v. Delaware & Hudson Railway Co.

*129OPINION OF THE COURT

Loren N. Brown, J.

This is a motion by the Delaware and Hudson Railway Company for an order granting it judgment dismissing the complaint, and, in the alternative, an order vacating the note of issue.

This is an action for personal injuries. Plaintiffs Kenneth L. Bovair and Michael Shute were injured on May 6, 1983 at approximately 8:50 p.m. when the dirt bike on which they were riding collided with a whistle post on property owned by the defendant. The dirt track ran parallel to the railroad track. The whistle post, positioned between the railroad track and the dirt track,…