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

989
CA 12-00545
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


JUDITH T. ARMSTRONG, PLAINTIFF-APPELLANT,

                      V                            MEMORANDUM AND ORDER

JOAN MERRICK, DEFENDANT-RESPONDENT.


CARL J. COCHI, UTICA, FOR PLAINTIFF-APPELLANT.

GOZIGIAN, WASHBURN & CLINTON, COOPERSTOWN (EDWARD W.G. GOZIGIAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County
(Norman I. Siegel, A.J.), dated November 21, 2011 in a personal injury
action. The order, insofar as appealed from, granted the motion of
defendant for leave to amend the answer.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and the motion is
denied.

     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; Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8 AD3d
1000, 1001; Christiano v Chiarenza, 1 AD3d 1039, 1040). Here, the
complaint and plaintiff’s 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). Defendant’s
proposed amendment therefore was patently without merit.




Entered:    October 5, 2012                      Frances E. Cafarell
                                                 Clerk of the Court
