        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

573
CA 16-01210
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


SUZANNE M. GALLAGHER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT,
AND COUNTY OF ERIE, DEFENDANT-RESPONDENT.


MCMAHON, MARTINE & GALLAGHER, LLP, BROOKLYN (PATRICK W. BROPHY OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ELIZABETH M. BERGEN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered January 28, 2016. The order granted
that part of the motion of defendant County of Erie seeking an award
of attorney’s fees.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and that part of the
motion of defendant County of Erie seeking attorney’s fees is denied.

     Memorandum: Plaintiff commenced this premises liability action
seeking to recover damages for injuries she sustained when she fell
from her bicycle while trying to avoid colliding with a fence that was
blocking a bike path allegedly owned by the County of Erie
(defendant). Approximately 11 months after answering the complaint,
defendant requested that plaintiff stipulate to allow defendant to
amend its answer to include an affirmative defense based on General
Obligations Law § 9-103. When plaintiff refused, defendant moved for
leave to amend its answer and for attorney’s fees incurred in bringing
the motion based upon plaintiff’s conduct in refusing to stipulate to
the amendment. Supreme Court granted that part of defendant’s motion
seeking leave to amend its answer, and plaintiff appeals from a
subsequent order granting the remainder of defendant’s motion and
awarding defendant attorney’s fees in the amount of $3,705. We
reverse.

     A court may award attorney’s fees as a penalty for frivolous
conduct (see 22 NYCRR 130-1.1 [a]). As relevant to this appeal,
“conduct is frivolous if . . . it is completely without merit in law
and cannot be supported by a reasonable argument for an extension,
modification or reversal of existing law” (22 NYCRR 130-1.1 [c] [1]).
In our view, plaintiff’s conduct was not frivolous because it was not
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                                                         CA 16-01210

completely without merit.

     Although leave to amend pleadings ordinarily is “freely given
upon such terms as may be just” (CPLR 3025 [b]), “leave ‘should not be
granted where . . . the proposed amendment lacks merit’ ” (Oneida
Indian Nation v Hunt Constr. Group, Inc., 108 AD3d 1195, 1196). Here,
defendant sought leave to amend its answer to assert an affirmative
defense based on the immunity afforded to landowners who permit others
to use their property for certain enumerated recreational activities
(see General Obligations Law § 9-103). In opposition to defendant’s
motion, plaintiff contended that the proposed affirmative defense
lacked merit because such immunity generally does not extend to a
government entity that operates and maintains property that is kept
open to the public for those enumerated activities (see Ferres v City
of New Rochelle, 68 NY2d 446, 451-454; Baker v County of Oswego, 77
AD3d 1348, 1349). Thus, plaintiff’s conduct was not frivolous
inasmuch as she opposed defendant’s motion on appropriate grounds and
based her opposition on well-settled case law, regardless of whether
plaintiff’s opposition to the motion was unlikely to succeed (see
Matter of Bozer v Higgins, 204 AD2d 979, 980).




Entered:   May 5, 2017                         Frances E. Cafarell
                                               Clerk of the Court
