SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

726 

CA 14-01658 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

JACQUELYN J. SASSO, INDIVIDUALLY AND AS 

PARENT/NATURAL GUARDIAN OF JOSHUA SASSO-KANE, 

PLAINTIFF-RESPONDENT, 

 

V MEMORANDUM AND ORDER

WCA HOSPITAL, DEFENDANT-APPELLANT. 

 

COLUCCI & GALLAHER, P.C., BUFFALO (KARA M. ADDELMAN OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Chautauqua County

(Deborah A. Chimes, J.), entered May 7, 2014 in a personal injury

action. The order denied the motion of defendant for leave to amend

its answer and for summary judgment dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover for

injuries sustained by her son when his bicycle struck a depressed area

on defendant’s property. At the time of the accident, plaintiff’s son

was riding his bicycle back from school through defendant’s parking

lot. Defendant moved for leave to amend its answer to assert an

affirmative defense based on the recreational use statute, i.e.,

General Obligations Law § 9-103, and for summary judgment dismissing

the complaint pursuant to that statute and on the ground of assumption

of the risk. Supreme Court denied the motion. We affirm.

The court properly denied that part of defendant’s motion seeking

leave to amend the answer to assert the recreational use statute as an

affirmative defense. “It is well established that [l]eave to amend a

pleading should be freely granted in the absence of prejudice to the

nonmoving party where the amendment is not patently lacking in merit”

(Williams v New York Cent. Mut. Fire Ins. Co. [appeal No. 2], 108 AD3d

1112, 1114 [internal quotation marks omitted]; see Landers v CSX

Transp., Inc., 70 AD3d 1326, 1327). We conclude that the court

properly determined that defendant’s proposed amendment patently lacks

merit inasmuch as the recreational use statute does not apply to the

facts of this case as a matter of law. It is undisputed that

plaintiff’s son was engaged in one of the recreational activities
-2- 726 

CA 14-01658 

enumerated in section 9-103, i.e., bicycle riding, when he was

injured. To establish applicability of the statute, however,

defendant was also required to show that its property “was suitable

for the recreational activity in which plaintiff[’s son] was

participating when the accident occurred” (Moscato v Frontier

Distrib., 254 AD2d 802, 803, lv denied 92 NY2d 817). “Whether a

parcel of land is suitable and the immunity [of the recreational use

statute] available is a question of statutory interpretation, and is,

therefore, a question of law for the Court” (Bragg v Genesee County

Agric. Socy., 84 NY2d 544, 552; see Hulett v Niagara Mohawk Power

Corp., 1 AD3d 999, 1001). Suitability is established by showing that

the subject property is “ ‘(1) physically conducive to the activity at

issue, and (2) of a type that is appropriate for public use in

pursuing that activity as recreation’ ” (Blair v Newstead Snowseekers,

2 AD3d 1286, 1288, lv denied 2 NY3d 704). “A substantial indicator

that the property is physically conducive to the particular activity

is whether recreationists have used the property for that activity in

the past; such past use by participants in the [activity] manifests

the fact that the property is physically conducive to it” (id.

[internal quotation marks omitted]). Here, defendant failed to submit

any evidence that the property had been used in the past by

“recreationists” for bicycle riding. Moreover, under the

circumstances of this case, we conclude that the subject property is

not appropriate for public use in pursuing bicycle riding as a

recreational activity (see Iannotti v Consolidated Rail Corp., 74 NY2d

39, 45). Indeed, the Court of Appeals has made clear that

recreational use immunity should apply only to property that “the

Legislature would have envisioned as being opened up to the public for

recreational activities” (id.). Here, defendant failed to establish

that its employee parking lot comes within the purview of that

standard.

Contrary to defendant’s final contention, the court properly

denied that part of its motion seeking summary judgment dismissing the

complaint on the ground of assumption of the risk. As stated by the

Court of Appeals, the “application of assumption of the risk should be

limited to cases appropriate for absolution of duty, such as personal

injury claims arising from sporting events, sponsored athletic and

recreative activities, or athletic and recreational pursuits that take

place at designated venues” (Custodi v Town of Amherst, 20 NY3d 83,

89). Here, plaintiff’s son was not engaging in an activity or event

sponsored or supported by defendant, nor was he operating his bicycle

at a designated venue (see id.). Rather, he was simply using his

bicycle to return home from school, and thus the court properly

concluded that assumption of the risk does not apply.

Defendant’s remaining contention is not properly before us

inasmuch as it is raised for the first time on appeal (see Ciesinski v

Town of Aurora, 202 AD2d 984, 985).

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court