ARMSTRONG, JUDITH T. v. MERRICK, JOAN

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

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.