Opinion
December 20, 1989
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Callahan, J.P., Denman, Green, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant E E Drilling and Testing Company, Inc. (EEDT) permission to serve an amended answer alleging the affirmative defense that receipt of workers' compensation benefits is plaintiff's sole remedy. Leave to amend shall be freely granted and plaintiff has demonstrated no prejudice (see, CPLR 3025 [b]; McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755, 757; Fahey v County of Ontario, 44 N.Y.2d 934, 935). On this record there is an issue of fact regarding the decedent's employment status at the time of the accident. Thus, it cannot be said that defendant's defense lacks merit as a matter of law (see, Braxton v Mendelson, 233 N.Y. 122, 124; Matter of Abramson v Long Beach Mem. Hosp., 103 A.D.2d 866; Poppenberg v Reliable Maintenance Corp., 89 A.D.2d 791; Brooks v Chemical Leaman Tank Lines, 71 A.D.2d 405, 409; Dransfield v Eastern Seaboard Warehouse Corp., 43 A.D.2d 569).