PARIS v. REISS CNR (1998)

In light of our decision in Paris v. Reiss [appeal No. 1], 242 A.D.2d 979, 664 N.Y.S.2d 697 [decided herewith], we do not address the denial of that part of defendant's motion seeking to renew argument of plaintiffs' motion for partial summary judgment.

Supreme Court abused its discretion in denying that part of defendant's motion seeking leave to serve an amended answer alleging the exclusivity of the Workers' Compensation Law as an affirmative defense (see, Legere v. Eastern Ambulance, 175 A.D.2d 647, 572 N.Y.S.2d 577;  Holtz v. E & E Drilling & Testing Co., 156 A.D.2d 1030, 550 N.Y.S.2d 858).   Thus, we modify the order to grant that relief.   The court, however, properly denied that part of defendant's motion seeking summary judgment dismissing the causes of action alleging violations of Labor Law § 240(1) and § 241(6) based on that affirmative defense.   Defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law.   By his own submissions, there is an issue of fact with respect to the employment status of plaintiff Steven M. Paris (see, Sanfilippo v. City of New York, 239 A.D.2d 296, 657 N.Y.S.2d 423).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: