Opinion
March 16, 1992
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the order is reversed, on the law, with costs, the appellants' motion is granted, the second amended answer is deemed served, summary judgment is granted to the appellants dismissing the complaint insofar as it is asserted against them, and the action against the remaining defendant is severed.
The Supreme Court erred in denying the appellants' motion for leave to serve a second amended answer raising the affirmative defense that the action was barred by the Workers' Compensation Law. That affirmative defense had been asserted in the appellants' original answer but was inadvertently omitted in their first amended answer. The plaintiff can claim neither prejudice nor surprise, because she was aware of her employment status from the outset and had received Workers' Compensation benefits (see, Caceras v Zorbas, 74 N.Y.2d 884).
In addition, the Supreme Court erred in denying the appellants summary judgment. A worker injured during the course of the worker's employment cannot maintain an action to recover damages for personal injuries against the owners of premises upon which an accident occurred when, as here, those owners are also officers of the corporation which employed the worker (see, Heritage v Van Patten, 59 N.Y.2d 1017; Roll v Murphy, 174 A.D.2d 1030; Owens v Hirth, 166 A.D.2d 244; St. Andrews v Lucarelli, 115 A.D.2d 155). The Workers' Compensation award which the plaintiff applied for and received is her exclusive remedy (see, Workers' Compensation Law § 29). Regardless of their status as owners of the premises where the injury occurred, the appellants remain coemployees with the plaintiff in all matters arising from and connected with their common employment (see, Heritage v Van Patten, supra). Balletta, J.P., O'Brien, Copertino and Pizzuto, JJ., concur.