Opinion
CA 02-00629
October 1, 2002.
Appeal and cross appeal from an order of Supreme Court, Monroe County (Cornelius, J.), entered June 4, 2001, which denied the motion of defendant Town of Irondequoit for summary judgment dismissing the complaint against it and denied plaintiff's cross motion for leave to amend the complaint.
CULLEY, MARKS, TANENBAUM PEZZULO, LLP, ROCHESTER (FRANK G. MONTEMALO OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
FARACI LANGE, LLP, ROCHESTER (MATTHEW F. BELANGER OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action to recover damages for injuries he sustained as the result of a ride on Spaceball, an amusement ride owned and operated by defendant Ralph Guary, III. Defendant Town of Irondequoit (Town) contracted with Guary to operate Spaceball as part of the Town's Independence Day celebration. Supreme Court properly denied the motion of the Town seeking summary judgment dismissing the complaint against it. As the court properly concluded, the evidence presents a triable issue of fact whether the Town exercised sufficient control over Guary to be responsible for his allegedly negligent operation of Spaceball ( see Wright v. Esplanade Gardens, 150 A.D.2d 197, 198). In addition, the court properly concluded that the evidence presents a triable issue of fact whether the Town breached its duty to exercise reasonable care to protect patrons of its Independence Day celebration from injury ( see Covey v. State of New York, 200 Misc. 340, 342-343; see also Noeller v. County of Erie, 145 A.D.2d 919, 920; Platt v. Erie County Agric. Socy., 164 A.D. 99, 103-104). Finally, the court properly exercised its discretion in denying plaintiff's cross motion for leave to amend the complaint on the ground that the Town would be prejudiced by the proposed amendment ( see Griffiths v. Lindemann, 152 A.D.2d 655; Fulford v. Baker Perkins, Inc., 100 A.D.2d 861).