WELLER v. MARRIOTT MANAGEMENT SERVICES CORP

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Supreme Court, Appellate Division, Fourth Department, New York.

Donald R. WELLER, Respondent, v. MARRIOTT MANAGEMENT SERVICES CORP., Appellant.

Decided: April 25, 1997

Before GREEN, J.P., and CALLAHAN, BOEHM and FALLON, JJ. Chamberlain, D'Amanda, Oppenheimer (Henry R. Ippolito) by Paul Clark, Rochester, for Appellants. Bond, Schoeneck & King, L.L.P., Thomas D. Keleher, of counsel by H.J. Hubert, Syracuse, for Respondent.

Supreme Court erred in denying the motion of defendant, Marriott Management Services Corp. (Marriott), for leave to amend its answer to add an affirmative defense based upon General Obligations Law § 9-103.   Marriott was under contract with Hobart College (Hobart), the landowner, to maintain its buildings and grounds on the campus where plaintiff sustained injuries while riding a bicycle (see, Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990).   Because Marriott was under contract with Hobart at the time of the accident, it had an “authorized presence” on the campus sufficient to bring it within the meaning of occupant in the recreational use statute (Albright v. Metz, 88 N.Y.2d 656, 665, 649 N.Y.S.2d 359, 672 N.E.2d 584;  see, General Obligations Law § 9-103[1][a] ).   Furthermore, leave to amend pleadings should be freely given absent prejudice or surprise resulting directly from the delay (see, CPLR 3025[b];  Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146).

Order unanimously reversed on the law without costs and motion granted.

MEMORANDUM: