Genrich v. Guary

—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 plaintiffs cross motion for leave to amend the complaint.

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 AD2d 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 AD2d 919, 920; Platt v Erie County Agric. Socy., 164 App Div 99, 103-104). Finally, the court properly exercised its discretion in denying plaintiffs 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 AD2d 655; Fulford v Baker Perkins, Inc., 100 AD2d 861). Present— Pigott, Jr., P.J., Green, Hayes, Kehoe and Gorski, JJ.