New York State Court of Claims

New York State Court of Claims

CHESTNUT v. THE STATE OF NEW YORK, #2008-041-011, Claim No. 111056, Motion No. M-74816


Motion to amend answer to add affirmative defense that workers’ compensation is claimant’s exclusive remedy is granted because claimant has not shown that prejudice will result if motion is granted and because waiver of workers’ compensation defense occurs only where defendant ignores issue to point of final disposition of claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Saul Aronson, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to amend its answer to allege that the claim is barred by the exclusive remedy provided to claimant by §§ 11 and 29 (6) of the New York State Workers’ Compensation Law. In particular, defendant argues that claimant was working as a special employee of defendant at the time claimant was injured.

The claim accrued on April 4, 2005 at an automotive repair facility owned and operated by the New York State Department of Transportation. Claimant was injured when a tire which claimant had mounted on a rim and filled with air blew off the rim, allegedly because defendant’s employee provided a tire which was too large for the rim. At the time of the accident, claimant was employed by Warren Tire Co., Inc. (Warren Tire) and was working at defendant’s facility each Monday through an "arrangement" between Warren Tire and defendant.

The claim was filed with the Clerk of the Court of Claims on June 24, 2005 and served on the Attorney General on June 27, 2005. Defendant’s answer was served on July 27, 2005 and filed with the Clerk of the Court of Claims on July 28, 2005. Depositions of the manager of defendant’s facility, as well as the employee of defendant working directly with claimant and who supplied the tire, were conducted on January 19, 2006.

Claimant filed a note of issue and certificate of readiness on December 1, 2006 and a bifurcated trial was scheduled to commence on November 8, 2007. At a pre-trial conference held on October 9, 2007, defendant requested an adjournment of the trial date to obtain an expert witness and asserted that it intended to raise the exclusive remedy provided by workers’ compensation as a bar to the claim.

The Court adjourned the trial date to June 10, 2008 and, at a pre-trial conference on March 6, 2008, defendant stated it would move to amend its answer to add the workers’ compensation defense. The motion was made on April 14, 2008.

CPLR R 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR R 3025 [b]). "[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse" (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

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]).

Defendant has made a sufficient showing that the amendment may be meritorious. In Thompson v Grumman Aerospace Corp. (78 NY2d 553, 557 [1991]), the Court of Appeals made clear that:
"[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."

"The issue of whether a person may be categorized as a special employee is generally a factual issue . . . Principal factors in determining whether a special relationship exists include the right to control, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work . . . Within this context, however, it has been held that the key to the determination is who controls and directs the manner, details and ultimate result of the employee’s work" (Shoemaker v Manpower, Inc., 223 AD2d 787, 788 [3d Dept 1996], lv dismissed 88 NY2d 874 [1996]; see Ribeiro v Dynamic Painting Corp., 23 AD3d 795, 796 [3d Dept 2005], lv denied 6 NY3d 707 [2006].)

The deposition transcripts attached to defendant’s motion papers offer evidence that claimant was, for a period of time prior to the accident, regularly employed at defendant’s automotive facility every Monday for the entire day, using materials and at least some tools (including the cage in which the tires were inflated) provided by defendant. Further, it is maintained that defendant’s employees were solely responsible for choosing the rims and tires which claimant was required to assemble and inflate. Claimant was not permitted unescorted access to the facility area where the tires and rims were stored and these materials were provided to claimant by defendant’s employee.

Claimant has not alleged, much less proved, that he would suffer prejudice as a result of the proposed amendment. Indeed, no application has been made to the Court by claimant for additional time to investigate and/or conduct further discovery on the special employment issue, first raised by defendant in October 2007, seven months ago.

In Shine v Duncan Petroleum Transport, Inc. (60 NY2d 22, 27 [1983]), the Court of Appeals held that:
"[W]hile the defense of workers’ compensation could be waived, leave to amend pleadings to include such defense 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:
"[D]emonstrated 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 [1989]).

The record shows that claimant has a pending workers’ compensation claim. Claimant knew that he was regularly working at the defendant’s facility and was also aware of the terms and conditions of his work. Claimant has known of the testimony of defendant’s employees regarding the terms and conditions of claimant’s work at the facility since January of 2006. Claimant therefore "cannot claim prejudice or surprise because he was aware of his employment status from the outset and had received workers compensation benefits" (Caceras, 74 NY2d at 885).

The proposed defense has not been waived. In Murray v City of New York (43 NY2d 400 [1977]), the defendant City of New York (City) did not raise the affirmative defense of the exclusivity of workers’ compensation as a remedy in its answer. After plaintiff had presented her witnesses at trial and rested, defendant City moved to dismiss based on workers’ compensation as a bar to the action.

The trial court dismissed the complaint as against the City and was reversed by the Appellate Division. The Court of Appeals reversed the order of the Appellate Division, holding, at p. 407, that:
"Workmen’s compensation is an exclusive remedy as a matter of substantive law and, hence, whenever it appears or will appear from a plaintiff's pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff . . . Although the issue may be waived, as plaintiff here argues, such waiver is accomplished only by a defendant ignoring the issue to the point of final disposition itself."

The exclusive remedy provided by the workers’ compensation law has been held not to have been waived in the following circumstances, among others: On a motion to vacate defendant’s default (Garcia v Pepe, 42 AD3d 427 [2d Dept 2007]); after plaintiff had been granted summary judgment (Goodarzi v City of New York, 217 AD2d 683 [2d Dept 1995], lv denied 87 NY2d 803 [1995]); on the eve of trial (Cameli v Pace University, 131 AD2d 419 [2d Dept 1987]; Lanpont v Savvas Cab Corp., Inc., 244 AD2d 208 [1st Dept 1997]); after jury selection (Caceras, supra); and during trial (Raptis v Juda Const., Ltd., 26 AD3d 153 [1st Dept 2006), lv denied 7 NY3d 716 [2006]).

For all of the foregoing reasons, defendant’s motion to amend its answer to assert the exclusive remedy of workers’ compensation is granted. Defendant shall serve and file the amended answer on or before May 30, 2008.

May 12, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion, filed April 15, 2008;
  2. Affirmation of Saul Aronson, affirmed on April 11, 2008, with annexed exhibits;
  3. Affirmation of Edward P. Ryan, affirmed on April 23, 2008.