| Baker v County of Oswego |
| 2010 NY Slip Op 06899 [77 AD3d 1348] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Robert Baker et al., Individually and as Administrators of the Estate ofDominick Baker, Deceased, Respondents, v County of Oswego, Appellant, and Carl F. Erikson et al.,as Parents and Natural Guardians of John M. Erikson, an Infant, et al.,Respondents. |
—[*1] Michaels & Smolak, P.C., Auburn (Michael G. Bersani of counsel), for plaintiffs-respondents. Craig J. Billinson & Associates, Syracuse (Peter M. Hartnett of counsel), fordefendants-respondents Carl F. Erikson and Debra L. Erikson, as Parents and Natural Guardians ofJohn M. Erikson, an Infant. Melvin & Melvin, PLLC, Syracuse (Michael R. Vaccaro of counsel), for defendant-respondentTheresa L. Proctor.
Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, A.J.),entered May 19, 2009. The order, inter alia, denied the motion of defendant County of Oswego forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by grantingthe motion insofar as it seeks leave to amend the answer of defendant County of Oswego uponcondition that the amended answer is served within 20 days of service of a copy of the order of thisCourt with notice of entry and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this wrongful death action, individually and as administratorsof the estate of their son, seeking damages for the fatal injuries he sustained when a vehicle driven bydefendant Theresa L. Proctor collided with the all-terrain vehicle (ATV) upon which [*2]he was a passenger. The accident occurred at the intersection ofMarsden Road and the Oswego County Recreational Trail. Defendant County of Oswego (County)moved for summary judgment dismissing the complaint and all cross claims against it or, in thealternative, for leave to amend its answer. We conclude that Supreme Court properly denied theCounty's motion insofar as it sought summary judgment dismissing the complaint and any cross claimsagainst the County. Contrary to the contention of the County, General Obligations Law § 9-103does not confer immunity from liability for negligence upon it. That statute generally provides suchimmunity to landowners, lessees or occupants of premises who permit others to use their property forcertain enumerated recreational activities (see § 9-103 [1] [a], [b]). "When thelandowner is a government entity, however, the appropriate inquiry is the role of the landowner inrelation to the public's use of the property in determining whether it is appropriate to apply the limitedliability provision of [that statute]" (Quackenbush v City of Buffalo, 43 AD3d 1386, 1387 [2007] [internalquotation marks omitted]; see Myers v Stateof New York, 11 AD3d 1020 [2004]; see generally Ferres v City of New Rochelle,68 NY2d 446, 451-455 [1986]). Here, statutory immunity does not apply to the County inasmuch asthe trail is actively advertised, operated and maintained by the County "in such a manner that theapplication of such immunity would not create an additional inducement to keep the property open tothe public for the specified recreational activities set forth in [the statute]" (Quackenbush, 43AD3d at 1388; see Ferres, 68 NY2d at 451-455; Rashford v City of Utica, 23 AD3d 1000 [2005]; Keppler v Townof Schroon, 267 AD2d 745, 747 [1999]; cf. Sega v State of New York, 60 NY2d 183[1983]; Myers, 11 AD3d 1020 [2004]).
We further conclude, however, that the court abused its discretion in denying the alternative requestfor relief sought by the County in its motion, i.e., leave to amend its answer to assert an affirmativedefense based upon "the limited immunity with respect to injuries arising from the exercise of judgmentand discretion in the governmental decisions of its officers and employees" (Ufnal v CattaraugusCounty, 93 AD2d 521, 523 [1983], lv denied 60 NY2d 554 [1983]). We thereforemodify the order accordingly. Generally, " '[l]eave to amend a pleading should be freely granted in theabsence of prejudice to the nonmoving party where the amendment is not patently lacking in merit' " (McFarland v Michel, 2 AD3d 1297,1300 [2003]; see CPLR 3025 [b]; Nastasi v Span, Inc., 8 AD3d 1011, 1013 [2004]). Here, we perceiveno prejudice to plaintiffs, the nonmoving parties, and we reject plaintiffs' contention that the proposedamendment is lacking in merit (see generally Ufnal, 93 AD2d 521 [1983]).
Finally, we reject the further contention of the County that plaintiffs' son assumed the risk of injuryby virtue of the alleged negligence of the son of defendants Carl F. Erikson and Debra L. Erikson, whowas driving the ATV, or other third parties (see Pelkey v Viger, 289 AD2d 899, 900 [2001],appeals dismissed 98 NY2d 707 [2002]). Present—Smith, J.P., Carni, Lindley,Sconiers and Pine, JJ.