Hogarth v. City of Syracuse

238 A.D.2d 887, 660 N.Y.S.2d 779, 1997 N.Y. App. Div. LEXIS 4675

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of plaintiff to amend her complaint to add a new cause of action alleging that the injuries sustained by plaintiff’s daughter were the result of the willful and intentional conduct of defendants. Leave to amend should be freely given (see, CPLR 3025 [b]), and the decision whether to grant such a motion is within the sound discretion of the court (see, Beuschel v Malm, 114 AD2d 569). Because the proposed amendment is not on its face palpably insufficient, we conclude that the court did not abuse its discretion in allowing the amendment (see, Clark v Taylor Wine Co., 148 AD2d 908, 909, quoting Prosser v Gouveia, 98 AD2d 992, 993).

We further conclude that the court properly granted summary judgment dismissing the negligence causes of action based on General Obligations Law § 9-103. The record establishes that plaintiff’s daughter was engaged in sledding, an activity enumerated in that section, and that the property was suitable for public use for that purpose. Defendant landowners were therefore immune from liability for their ordinary negligence for injuries sustained by plaintiff’s daughter while sledding on their land (see, General Obligations Law § 9-103 [1] [a]; Bragg v Genesee County Agric. Socy., 84 NY2d 544, 551-552; Martins v Syracuse Univ., 214 AD2d 967; Clark v State of New York, 178 AD2d 908; Dean v Glens Falls Country Club, 170 AD2d 798).

We have reviewed the remaining contentions of the parties and conclude that they are without merit. (Appeals from Order of Supreme Court, Onondaga County, Major, J.—Summary Judgment.) Present—Green, J. P., Lawton, Callahan, Boehm and Fallon, JJ.