For the reasons set forth below, Defendant’s motion to serve and file an
Amended Answer to assert an additional affirmative defense that Claimant’s
sole remedy is limited to the benefits of the New York State Workers’
Compensation Law is granted.
The Claim, which was filed with the Clerk of the Court on June 20, 2005 and
served upon the Attorney General on August 11, 2005 (see Ex. A attached
to State’s motion), alleges that on December 28, 2004 Claimant slipped and
fell on the sidewalk east of the south side entrance to Building 102 located at
Pilgrim Psychiatric Center in West Brentwood, New York (hereinafter Pilgrim) as
a result of the State’s negligence in its ownership, operation and
maintenance of the sidewalk.
Defendant’s Verified Answer was served on September 20, 2005 and filed
with the Clerk of the Court on September 23, 2005. Discovery has been completed
and Claimant filed a Note of Issue and Certificate of Readiness on April 7,
CPLR 3025(b) provides that leave to amend shall be freely given upon such terms
as are just. The phrase has been interpreted to mean that, in the absence of
prejudice or unfair advantage, leave to amend should be given freely
(McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp.,
59 NY2d 755, 757 ; Nasuf Constr. Corp. v State of New York, 185
AD2d 305 [2nd Dept 1992]). “Mere lateness is not a barrier to the
amendment. It must be lateness coupled with significant prejudice to the other
side, the very elements of the laches doctrine” (Edenwald Contr. Co. v
City of New York, 60 NY2d 957, 959 , quoting Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:5; Arcuri
v Ramos, 7 AD3d 741, 741-742 [2d Dept 2004]).
Prejudice to the nonmoving party is shown where that party is “hindered
in the preparation of its case or has been prevented from taking some measure in
support of its position” (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d
Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]). The
Affirmation in Opposition to this motion submitted by Claimant’s counsel
has not alleged or proved that Claimant would suffer prejudice as a result of
the proposed amendment.
Moreover, the State has made a showing that the amendment may be meritorious.
In Thompson v Grumman Aerospace Corp. (78 NY2d 553, 557-558 ), the
Court of Appeals stated:
“[A] general employee of one employer may also be in the special employ
of another, notwithstanding the general employer’s responsibility for
payment of wages and for maintaining workers’ compensation and other
employee benefits ... A special employee is described as one who is transferred
for a limited time of whatever duration to the service of another ... General
employment is presumed to continue, but this presumption is overcome upon clear
demonstration of surrender of control by the general employer and assumption of
control by the special employer ... We recognize that a person’s
categorization as a special employee is usually a question of fact ... and
generally no one [factor] is decisive ... While not determinative, a significant
and weighty feature has emerged that focuses on who controls and directs the
manner, details and ultimate result of the employee’s work”
The deposition transcript attached to Defendant’s motion papers offers
evidence that Claimant’s work location was, for a period of time prior to
the accident, at Pilgrim. She stated that she was employed by Mt. Sinai Medical
Center but worked full time at Pilgrim (Ex. F attached to State’s motion
papers, Deposition transcript of Claimant, pp. 9-11).
In Shine v Duncan Petroleum Transport, Inc. (60 NY2d 22, 27 ), the
Court of Appeals stated that “leave to amend pleadings to include [the
defense of workers’ compensation] should be freely granted, even in
midtrial, in the absence of operative prejudice.” The trial court has
discretion to deny a motion to amend the answer to assert a workers’
compensation defense where the Claimant has “demonstrated prejudice
resulting from defendant’s delay. [Claimant] was required to establish
prejudice accruing to him as a consequence of defendant’s failure to
timely assert the defense, and to include a showing that the prejudice could
have been avoided if the defense had been timely asserted” (Caceras v
Zorbas, 74 NY2d 884, 885 ). As noted above, Claimant has made no such
demonstration of prejudice.
In this instance, Defendant has moved to amend its Answer without also
requesting a stay of the Claim. Thus, the Claim shall proceed in the normal
course and the availability of the Workers’ Compensation Law defense will
be resolved as part of the trial of the Claim (Shine v Duncan Petroleum
Transport, Inc., 60 NY2d 22, supra at 27*; see Murray v City of
New York, 43 NY2d 400 ; PJI 2:215[I][C]).
Based upon the foregoing, Defendant’s motion to amend its answer to
assert the exclusive remedy of the Workers’ Compensation Law is granted.
Defendant shall serve and file the Amended Answer within twenty (20) days of the
date of filing of this Decision and Order.