MACK v. CITY OF NEW YORK (2018)

Order, Supreme Court, New York County (W. Franc Perry, J.), entered May 18, 2017, which granted defendants' motion for leave to amend their answer to assert a defense based on the exclusivity provisions of the Workers' Compensation Law and to dismiss the complaint based on that defense, unanimously affirmed, without costs.

Plaintiff was injured when she tripped and fell on a raised carpet while entering the building where the offices of the New York County District Attorney are located.  Plaintiff, who was employed as a secretary for the District Attorney at the time of the accident, applied for and received Workers' Compensation benefits, which were paid by the City.

The court providently exercised its discretion in granting defendants leave to amend the answer to assert the affirmative defense, since leave to amend is freely given and plaintiff did not show any prejudice (CPLR 3025[b];  see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014] ).

Plaintiff's claims were properly dismissed based on the exclusivity provisions of the Workers' Compensation Law because employees of the New York County District Attorney's office are considered employees of the City of New York (see Morris v. City of New York, 198 A.D.2d 35, 603 N.Y.S.2d 463 [1st Dept. 1993];  Workers Compensation Law §§ 11, 29;  see also Public Officer's Law § 2;  Administrative Code of the City of New York, § 7–110).  Furthermore, employees of the District Attorney's office, including plaintiff, are paid by the City of New York (Morris, 198 A.D.2d at 36, 603 N.Y.S.2d 463), and the City actually paid plaintiff's Workers' Compensation benefits.

We have considered plaintiff's remaining arguments and find them unavailing.