SMITH v. ONEIDA SALES AND SERVICE INC (2006)

 Supreme Court did not abuse its discretion in granting the motion of Oneida Sales and Service, Inc., doing business as Oneida Concrete Products, Inc. (defendant), for leave to serve an amended answer asserting Workers' Compensation Law § 29 as an affirmative defense (see generally Murray v. City of New York, 43 N.Y.2d 400, 404-405, 401 N.Y.S.2d 773, 372 N.E.2d 560, rearg. dismissed 45 N.Y.2d 966, 412 N.Y.S.2d 1025, 384 N.E.2d 692).   Mere lateness in the filing of such a motion does not bar the amendment.   Rather, “there must be lateness coupled with significant prejudice to the other side” (Edenwald Contracting Co. v. City of New York, 60 N.Y.2d 957, 957, 471 N.Y.S.2d 55, 459 N.E.2d 164;  see McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544).   Here, plaintiff alleges that he was prejudiced by the delay because he is unable to commence a timely action against his direct employer.   Plaintiff has failed to establish the requisite significant prejudice, however, because defendant's motion herein did not affect the ability of plaintiff to commence a direct action against his direct employer, and we note in any event that the same affirmative defense as that asserted herein would apply equally in an action against plaintiff's direct employer.   In addition, plaintiff “cannot claim prejudice or surprise because he was aware of his employment status from the outset and had received workers' compensation benefits” (Caceras v. Zorbas, 74 N.Y.2d 884, 885, 547 N.Y.S.2d 834, 547 N.E.2d 89;  see Ramirez v. Armstrong, 242 A.D.2d 871, 665 N.Y.S.2d 599).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: