TRUPIA TRUPIA v. LAKE GEORGE CENTRAL SCHOOL DISTRICT (2009)

Appeal from an order of the Supreme Court (Krogmann, J.), entered July 10, 2008, in Warren County, which granted defendants' motion for leave to amend their answer.

In July 2002, plaintiff Luke Anthony Trupia (hereinafter plaintiff) was injured while participating in a summer school program administered by defendants.   During a break between classes, plaintiff attempted to slide down the banister of a stairway and fell, landing at the bottom of the stairwell.   As a result, plaintiff sustained a skull fracture and brain injury, causing retrograde amnesia.   Thereafter, plaintiff and his father, plaintiff Lawrence C. Trupia, commenced this action.   Following discovery and filing of the note of issue, defendants moved pursuant to CPLR 3025(b) for leave to amend their answer to include the affirmative defense of primary assumption of risk.   Supreme Court granted the motion, and plaintiffs now appeal.

 While “ ‘[l]eave to amend pleadings rests within the trial court's discretion and shall be freely granted,’ ” permission to amend must be denied when “ ‘the proposed amendment is wholly devoid of merit or the delay prejudices the [nonmoving party]’ ” (Leclaire v. Fort Hudson Nursing Home, Inc., 52 A.D.3d 1101, 1102, 861 N.Y.S.2d 436 [2008] [citation omitted];  see Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097 [1989];  Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983] ).   In our view, the proposed amendment is devoid of merit and, therefore, we reverse.

 Pursuant to the doctrine of primary assumption of risk, a participant “engaging in a sport or recreational activity ․ consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997];  see Turcotte v. Fell, 68 N.Y.2d 432, 438-440, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986];  Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d 957, 958-959, 862 N.Y.S.2d 626 [2008] ).  “ ‘[A]ssumption of the risk in this form is really a principle of no duty ’ ” (Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 [citation omitted] );  as “a measure of the defendant's duty of care[, it] survives the enactment of the comparative fault statute” (Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964).   When the doctrine is applicable, it acts as a complete bar to liability based upon a defendant's alleged negligence (see id. at 438-439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  Burleigh v. General Elec. Co., 262 A.D.2d 774, 775, 691 N.Y.S.2d 662 [1999];  Roe v. Keane Stud Farm, 261 A.D.2d 800, 801, 690 N.Y.S.2d 336 [1999];  see also Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 251, 850 N.Y.S.2d 38 [2008], affd. 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 [2008] ).   Particularly relevant here, we note that “[t]he policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities” (Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989];  accord Morgan v. State of New York, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).

 Consistent with that policy, this Court has limited application of the doctrine “to situations in which a plaintiff has been injured ‘while voluntarily participating in a sporting or entertainment activity’ ” (Roe v. Keane Stud Farm, 261 A.D.2d at 801, 690 N.Y.S.2d 336, quoting Comeau v. Wray, 241 A.D.2d 602, 604, 659 N.Y.S.2d 347 [1997];  accord Stirpe v. Maloney & Sons, 252 A.D.2d 871, 872, 675 N.Y.S.2d 709 [1998];  see Hawkes v. Catatonk Golf Club, 288 A.D.2d 528, 529, 732 N.Y.S.2d 132 [2001];  Boyce v. Vazquez, 249 A.D.2d 724, 726, 671 N.Y.S.2d 815 [1998];  see also Coole-Mayhew v. Timm, 18 A.D.3d 948, 950, 794 N.Y.S.2d 486 [2005];  Burleigh v. General Elec. Co., 262 A.D.2d at 775, 691 N.Y.S.2d 662).   While defendants correctly assert that both the Second and Fourth Departments have expanded application of the doctrine beyond sporting and recreational activities (see e.g. Sy v. Kopet, 18 A.D.3d 463, 463-464, 795 N.Y.S.2d 75 [2005], lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006] [the plaintiff injured while attempting to enter his room through second story window];  Lamandia-Cochi v. Tulloch, 305 A.D.2d 1062, 1062, 759 N.Y.S.2d 411 [2003] [the infant plaintiff injured following fall while attempting to slide down wooden handrail];  Westerville v. Cornell Univ. 291 A.D.2d 447, 448, 737 N.Y.S.2d 389 [2002] [mental health care professional injured while participating in seminar to teach physical restraint techniques];  Davis v. Kellenberg Mem. High School, 284 A.D.2d 293, 294, 725 N.Y.S.2d 588 [2001] [the infant plaintiff injured while jumping off concrete bench] ), and argue that this case is the appropriate vehicle for a similar extension by this Court, we decline to so apply the doctrine.  “Extensive and unrestricted application of the doctrine of primary assumption of the risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff's own negligence barred recovery from the defendant” (Pelzer v. Transel El. & Elec. Inc., 41 A.D.3d 379, 381, 839 N.Y.S.2d 84 [2007] ).   Accordingly, inasmuch as the doctrine of primary assumption of risk is inapplicable here as a matter of law, we are constrained to reverse and deny defendants' motion to amend the answer.

ORDERED that the order is reversed, on the law, with costs, and motion denied.

MERCURE, J.P.

ROSE, LAHTINEN, KANE and MALONE JR., JJ., concur.