Opinion
June 30, 1966
Order entered on August 27, 1965 unanimously reversed, on the law, the facts and in the exercise of discretion, and leave is granted to defendant to serve an amended answer herein on condition that it first pays to plaintiff a full bill of costs to date, including $30 costs and disbursements of this appeal. Defendant in this wrongful death action seeks to amend its answer and include a defense based upon section 11 and subdivision 6 of section 29 Work. Comp. of the Workmen's Compensation Law. While it is true that the defendant unduly delayed in the making of this motion, there has been no showing that the plaintiff would suffer any prejudice by granting defendant's application. The plaintiff's rights under the Workmen's Compensation Law have been preserved by virtue of the filing by decedent's first wife of a timely claim thereunder. ( Matter of Whitsell v. Academy Auto Sales, 16 A.D.2d 846.) The amended answer shall be served within 15 days of the entry of an order hereon.
Concur — Stevens, J.P., Eager, Steuer and Capozzoli, JJ.