Brooks v. City of New York

Full title: GERARD BROOKS et al., Appellants, v. CITY OF NEW YORK, Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 29, 1998

246 A.D.2d 492 (N.Y. App. Div. 1998)

667 N.Y.S.2d 253

Opinion

January 29, 1998

Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.).

The motion to amend the answer was properly granted, there being no showing of prejudice resulting from the delay in asserting, prior to jury selection, the exclusivity of workers' compensation as an affirmative defense ( see, Sanfilippo v. City of New York, 239 A.D.2d 296; see also, Caceras v. Zorbas, 74 N.Y.2d 884; Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209-210). However, so much of the motion as sought summary judgment was improperly granted upon a finding that plaintiff was defendant's special employee as a matter of law, there being issues of fact in that regard, as defendant now concedes apparently on constraint of Sanfilippo v. City of New York (supra).

Concur — Ellerin, J.P., Nardelli, Wallach and Rubin, JJ.