Weller v. Marriott Management Services Corp.

238 A.D.2d 888, 661 N.Y.S.2d 108, 1997 N.Y. App. Div. LEXIS 4677

Opinion

—Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of defendant, Marriott Management Services Corp. (Marriott), for leave to amend its answer to add an affirmative defense based upon General Obligations Law § 9-103. Marriott was under contract with Hobart College (Hobart), the landowner, to maintain its buildings and grounds on the campus where plaintiff sustained injuries while riding a bicycle (see, Weller v Colleges of Senecas, 217 AD2d 280). Because Marriott was under contract with Hobart at the time of the accident, it had an "authorized presence” on the campus sufficient to bring it within the meaning of occupant in the recreational use statute (Albright v Metz, 88 NY2d 656, 665; see, General Obligations Law § 9-103 [1] [a]). Furthermore, leave to amend pleadings should be freely given absent prejudice or surprise resulting directly’ from the delay (see, CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934, 935). (Appeal from Order of Supreme Court, Ontario County, Cornelius, J.—Amend Answer.) Present—Green, J. P., Callahan, Boehm and Fallon, JJ.