Opinion
2000-07944
Argued October 30, 2001.
December 17, 2001.
In an action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Cowhey, J.), entered August 2, 2000, as granted the cross motion of the defendant third-party plaintiff for summary judgment seeking common-law indemnification against it, denied its cross motion, inter alia, for leave to amend its answer in the third-party action to assert the affirmative defense of Workers' Compensation and for summary judgment based on that defense.
O'Connor O'Connor, LLP, White Plains, N.Y. (Christopher C. Caiazzo of counsel), for third-party defendant-appellant.
Brecher Fishman Pasternack Popish Heller Rubin Reiff, P.C., New York, N.Y. (Frank Gulino of counsel), for plaintiffs-respondents.
O'Connor, McGuinness, Conte, Doyle Oleson, White Plains, N Y (Montgomery L. Effinger of counsel), for defendant third-party plaintiff-respondent.
Before: MYRIAM J. ALTMAN, J.P., SANDRA J. FEUERSTEIN, SANDRA L. TOWNES, A. GAIL PRUDENTI, JJ.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendant third-party plaintiff, payable by the third-party defendant.
The Supreme Court properly granted the cross motion of the third-party plaintiff for summary judgment on the third-party complaint for common-law indemnification. After the third-party plaintiff made a prima facie showing that it was entitled to summary judgment because it did not direct or control the injured plaintiff's work, the third-party defendant failed to raise a triable issue of fact (see, Taddeo v. 15 W. 72nd St. Owners Corp., 268 A.D.2d 468).
The Supreme Court providently exercised its discretion in denying that branch of the third-party defendant's cross motion which was for leave to amend its answer to assert the affirmative defense of Workers' Compensation. The decision to grant or deny leave to amend a pleading is within the court's discretion, and the exercise of such discretion will not easily be disturbed (see, Pogue v. Del Rosario, 266 A.D.2d 525). In this case, the third-party defendant did not seek leave to amend its answer in a timely manner, failed to offer a reasonable excuse for the delay, and did not proffer an adequate showing of merit (see, Amco Intl. v. Long Is. R. R. Co., 273 A.D.2d 421).
The third-party defendant's remaining contention is without merit.
ALTMAN, J.P., FEUERSTEIN, TOWNES and PRUDENTI, JJ., concur.