Opinion
February 4, 1994
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Denman, P.J., Green, Balio, Lawton and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The court abused its discretion in refusing to grant defendant leave to amend its answer to plead, as a defense, the exclusivity of the Workers' Compensation Law. "[L]eave to amend pleadings to include [a workers' compensation] defense should be freely granted * * * in the absence of operative prejudice" (Shine v. Duncan Petroleum Transp., 60 N.Y.2d 22, 27; see, Murray v. City of New York, 43 N.Y.2d 400, 405). Plaintiffs made no allegations of prejudice in their responding papers. Therefore, defendant's cross motion for leave to amend the answer should have been granted (see, Annucci v. City of New York, 102 A.D.2d 808).
That part of the cross motion seeking summary judgment based on the workers' compensation defense was properly denied and plaintiffs' motion for summary judgment based on plaintiffs' Labor Law causes of action also should have been denied. There are questions of fact whether those causes of action are barred by the Workers' Compensation Law (see, Ortiz v. Peterson Marina Homes Corp., 199 A.D.2d 1059).