Sasso v. WCA Hosp., 726 CA 14-01658

• Decision Date: 10 July 2015
• Docket Number: 726 CA 14-01658
• Citation: 13 N.Y.S.3d 762,2015 N.Y. Slip Op. 06066,130 A.D.3d 1546
• Parties: Jacquelyn J. SASSO, Individually and as Parent/ Natural Guardian of Joshua Sasso–Kane, Plaintiff–Respondent, v. WCA HOSPITAL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1546
13 N.Y.S.3d 762
2015 N.Y. Slip Op. 06066

Jacquelyn J. SASSO, Individually and as Parent/ Natural Guardian of Joshua Sasso–Kane, Plaintiff–Respondent
v.
WCA HOSPITAL, Defendant–Appellant.

726 CA 14-01658

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

July 10, 2015.

13 N.Y.S.3d 763

Colucci & Gallaher, P.C., Buffalo (Kara M. Addelman of Counsel), for Defendant–Appellant.

Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, and DeJOSEPH, JJ.

Opinion

MEMORANDUM:

130 A.D.3d 1547

Plaintiff commenced this action to recover for injuries sustained by her son when his bicycle struck a depressed area on defendant's property. At the time of the accident, plaintiff's son was riding his bicycle back from school through defendant's parking lot. Defendant moved for leave to amend its answer to assert an affirmative defense based on the recreational use statute, i.e., General Obligations Law § 9–103, and for summary judgment dismissing the complaint pursuant to that statute and on the ground of assumption of the risk. Supreme Court denied the motion. We affirm.

The court properly denied that part of defendant's motion seeking leave to amend the answer to assert the recreational use statute as an affirmative defense. “It is well established that [l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” (Williams v. New York Cent. Mut. Fire Ins. Co. [Appeal No. 2], 108 A.D.3d 1112, 1114, 969 N.Y.S.2d 292 [internal quotation marks omitted]; see Landers v. CSX Transp., Inc., 70 A.D.3d 1326, 1327, 893 N.Y.S.2d 774 ). We conclude that the court properly determined that defendant's proposed amendment patently lacks merit inasmuch as the recreational use statute does not apply to the facts of this case as a matter of law. It is undisputed that plaintiff's son was engaged in one of the recreational activities enumerated in section 9–103, i.e., bicycle riding, when he was injured. To establish applicability of the statute, however, defendant was also...