Opinion
May 9, 1994
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order and judgment is affirmed, with costs.
The plaintiff has failed to demonstrate the existence of prejudice attributable to the defendant's omission of the affirmative defense of election of remedies in the original answer (see, Murray v. City of New York, 43 N.Y.2d 400, 405; Cutwright v. Central Brooklyn Urban Dev. Corp., 127 A.D.2d 731). Accordingly, leave to amend the answer was properly granted. Mangano, P.J., Balletta, O'Brien, Hart and Florio, JJ., concur.