Opinion
February 23, 1999
Appeal from the Supreme Court, New York County (Lorraine Miller, J.).
The motion court's rejection of the proposed amendments on the ground of prejudice due to lateness is problematic in that the additional theories of recovery are based on the same facts originally alleged, and defendant's showing of prejudice was otherwise weak ( see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957; Bobrowsky v. Lexus, 215 A.D.2d 424). Instead, the proposed amendments relating to the Labor Law and the Industrial Code should be rejected for lack of merit ( see, Non-Linear Trading Co. v. Braddis Assocs., 243 A.D.2d 107), it being well settled that FELA wholly preempts State-law remedies for railway employees injured in the course of employment ( Rogers v. Consolidated Rail Corp., 948 F.2d 858, 860). The proposed amendment relating to OSHA should be accepted, an OSHA violation being properly admissible in a FELA action as evidence of negligence ( see, Ries v. National R. R. Passenger Corp., 960 F.2d 1156, 1162, 1165).
Concur — Sullivan, J. P., Ellerin, Williams and Wallach, JJ.