Opinion
February 1, 1971
In an action to recover damages for wrongful death, defendant Greenpoint Terminal Warehouse, Inc., appeals, as limited by its notice of appeal and its brief, from so much of a judgment of the Supreme Court, Kings County, entered May 22, 1970, as is in favor of plaintiff against it, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, and, as between plaintiff and said defendant, action severed and new trial granted, with costs to abide the event. The questions of fact have not been considered on this appeal. We previously held in this case that appellant's motion for leave to amend its answer so as to include the affirmative defense that plaintiff's exclusive remedy is under the Workmen's Compensation Law had been improperly denied ( Carrillo v. Greenpoint Term. Warehouse, 33 A.D.2d 909). Thereafter, that defense was dismissed at the trial as a matter of law. We are of the opinion that the evidence adduced at the trial presented a question of fact for resolution by the jury as to whether the injury arose in the course of the decedent's employment. Munder, Acting P.J., Martuscello, Shapiro, Brennan and Benjamin, JJ., concur.