ARMSTRONG, JUDITH T. v. MERRICK, JOAN

Appellate Division of the Supreme Court of New York

ARMSTRONG, JUDITH T. v. MERRICK, JOAN

99 A.D.3d 1247, 951 N.Y.2d 450

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 5, 2012

DocketCA 12-00545

StatusPublished

Cited by2 cases

This text of 99 A.D.3d 1247 (ARMSTRONG, JUDITH T. v. MERRICK, JOAN) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

ARMSTRONG, JUDITH T. v. MERRICK, JOAN, 99 A.D.3d 1247, 951 N.Y.2d 450 (N.Y. Ct. App. 2012).

Pincite

Opinion

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 AD3d 1276, 1277 [2008]; Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8 AD3d 1000, 1001 [2004]; Christiano v Chiarenza, 1 AD3d 1039, 1040 [2003]). Here, the complaint and plaintiffs 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 circumstances of this case (Trupia v Lake George Cent. School Dist., 14 NY3d 392, 396 [2010]). Defendant’s proposed amendment therefore was patently without merit. Present— Fahey, J.E, Peradotto, Garni and Sconiers, JJ.

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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 AD3d 1276, 1277 [2008]; Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8 AD3d 1000, 1001 [2004]; Christiano v Chiarenza, 1 AD3d 1039, 1040 [2003]). Here, the complaint and plaintiffs 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 circumstances of this case (Trupia v Lake George Cent. School Dist., 14 NY3d 392, 396 [2010]). Defendant’s proposed amendment therefore was patently without merit. Present— Fahey, J.E, Peradotto, Garni and Sconiers, JJ.

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Bluebook (online)

99 A.D.3d 1247, 951 N.Y.2d 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-judith-t-v-merrick-joan-nyappdiv-2012.

Opinion

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