Armstrong v. Merrick

• Decision Date: 05 October 2012
• Citation: Armstrong v. Merrick, 99 A.D.3d 1247, 951 N.Y.S.2d 450, 2012 N.Y. Slip Op. 6711 (N.Y. App. Div. 2012)
• Parties: Judith T. ARMSTRONG, Plaintiff–Appellant, v. Joan MERRICK, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 1247

951 N.Y.S.2d 450

2012 N.Y. Slip Op. 06711

Judith T. ARMSTRONG, Plaintiff–Appellant,

v.Joan MERRICK, Defendant–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 5, 2012.

Appeal from an order of the Supreme Court, Herkimer County (Norman I. Siegel,*451A.J.), dated November 21, 2011 in a personal injury action. The order, insofar as appealed from, granted the motion of defendant for leave to amend the answer.

Carl J. Cochi, Utica, for Plaintiff–Appellant.

Gozigian, Washburn & Clinton, Cooperstown (Edward W.G. Gozigian of Counsel), for Defendant–Respondent.

MEMORANDUM:

Supreme Court erred in granting defendant's motion for leave to amend the answer to assert the defense of primary assumption of risk. Although leave to amend should be freely granted, it is properly denied where the proposed amendment is patently lacking in merit ( see Carro v. Lyons Falls Pulp & Paper, Inc., 56 A.D.3d 1276, 1277, 867 N.Y.S.2d 646;Manufacturers & Traders Trust Co. v. Reliance Ins. Co., 8 A.D.3d 1000, 1001, 778 N.Y.S.2d 600;Christiano v. Chiarenza, 1 A.D.3d 1039, 1040, 767 N.Y.S.2d 377). Here, the complaint and plaintiff's factual submissions in opposition to the motion allege that plaintiff was injured when she was knocked over by defendant's dog while plaintiff was walking her own dog in a public space. “This is, in short, not a case in which the defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages,” and thus the doctrine of primary assumption of risk is inapplicable to the facts and...