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Supreme Court, Appellate Term, New York.

Angela CRUICKSHANK, Respondent, v. Angelique DUKES, Appellant.

Decided: April 11, 2001

Present:  ARONIN, J.P., PATTERSON and GOLIA, JJ. Fiedelman & McGaw, Jericho (Carol A. Moore of counsel), and Jacobowitz, Garfinkel & Lesman, New York City, for appellant. Pazer & Epstein, New York City (Matthew J. Fein of counsel), for respondent.

Order unanimously reversed without costs and defendant's motion for leave to amend the answer is granted.

Defendant's motion to amend her answer to include the affirmative defense of exclusivity of Workers' Compensation is predicated on her claim that plaintiff's injuries occurred in the course of plaintiff's special employment with Queensboro Society for the Prevention of Cruelty to Children [hereinafter “Queensboro”] and were allegedly caused by the negligence of defendant, who was a co-employee of plaintiff at Queensboro.   Additionally, defendant contends that plaintiff is precluded from maintaining the instant action since plaintiff acknowledged receiving Workers' Compensation benefits from her general employer, Tempositions Health Care, Inc. [hereinafter “Tempositions”].   Defendant's motion should have been granted for the reasons set forth herein.

 Leave to amend a pleading should be freely given (CPLR 3025[b] ) where the proposed amendment does not plainly lack merit (Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097) and there is no showing of prejudice or surprise to the opposing party (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Northbay Constr. Co. v. Bauco Constr. Corp., 275 A.D.2d 310, 311, 711 N.Y.S.2d 510;  Smith v. Peterson Trust, 254 A.D.2d 479, 480, 678 N.Y.S.2d 788).

 Defendant has demonstrated the merits of its affirmative defense.   As a general rule, Workers' Compensation is the exclusive remedy available against an employer when an employee is injured in the course of employment (see, Workers' Compensation Law §§ 10, 11).   Workers' Compensation is also the exclusive remedy for an employee injured “by the negligence or wrong of another in the same employ” (Workers' Compensation Law § 29[6];  see also, Naso v. Lafata, 4 N.Y.2d 585, 589, 176 N.Y.S.2d 622, 152 N.E.2d 59;  Cronin v. Perry, 244 A.D.2d 448, 449, 664 N.Y.S.2d 123;  Lanpont v. Savvas Cab Corp. 244 A.D.2d 208, 210, 664 N.Y.S.2d 285), whether such injury is sustained in the course of general or special employment (see, e .g., DeRubeis v. D & F Wastepaper Co., 273 A.D.2d 434, 711 N.Y.S.2d 750;  Palacino v. Equity Mgt. Group, 272 A.D.2d 457, 709 N.Y.S.2d 566;  Causewell v. Barnes & Noble Bookstores, Inc., 238 A.D.2d 536, 657 N.Y.S.2d 87).   Moreover, receipt of compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer (see, Workers' Compensation Law §§ 11, 29[6];  Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355;  Martin v. Baldwin Union Free School Dist., 271 A.D.2d 579, 706 N.Y.S.2d 712;  Gubitosi v. National Realty Co., 247 A.D.2d 512, 669 N.Y.S.2d 321).   At her deposition, plaintiff testified that at the time of the accident, she was employed by Tempositions as a child care counselor, and that her salary was paid by Tempositions.   Plaintiff, however, also testified that during the period in question, she was working for Queensboro, and had been working for them for more than six months.   On the day of the accident, she reported to Queensboro's Corona Group Home, and subsequently left for a picnic with three teenage girls in a van driven by defendant when the accident occurred.   Plaintiff also acknowledged that her supervisor at Queensboro at the time of the accident was a “Mr. Lowe”.   Contrary to plaintiff's contention, the foregoing testimony indicates elements of direct supervision and control over material aspects of plaintiff's work by Queensboro which raise factual issues with respect to plaintiff's alleged special employment status with Queensboro sufficient to justify defendant's proposed inclusion of the exclusivity of Workers' Compensation as an affirmative defense (see, Palacino v Equity Mgt. Group, supra;  Leone v. Columbia Sussex Corp. 203 A.D.2d 430, 610 N.Y.S.2d 586;  see also, Thompson v Grumman Aerospace Corp., supra;  Martin v Baldwin Union Free School Dist., supra;  Singh v. Shafi, 252 A.D.2d 494, 675 N.Y.S.2d 614;   Cronin v. Perry, supra ).

 Plaintiff nonetheless argues that defendant's motion was properly denied because of the protracted delay without explanation or excuse, which she claims resulted in prejudice.   However, tardiness alone is not a barrier to an amendment in the absence of significant prejudice (Edenwald Contr. Co. v. City of New York, supra at 959, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Northbay Constr. Co. v. Bauco Constr. Corp., supra at 311, 711 N.Y.S.2d 510).   Similarly, the failure to explain the delay will not bar an amendment absent prejudice or surprise (Northbay Constr. Co. v. Bauco Constr. Corp., supra, at 312, 711 N.Y.S.2d 510;  Smith v. Peterson Trust, supra, at 480, 678 N.Y.S.2d 788).   Moreover, in cases asserting the exclusivity of Workers' Compensation, “a waiver is accomplished only by a defendant ignoring the issue to the point of final disposition itself” (Murray v. City of New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560;  Goodarzi v. City of New York, 217 A.D.2d 683, 684, 630 N.Y.S.2d 534;  Rainey v. Jefferson Vil. Condo No. 11 Assocs., 203 A.D.2d 544, 546, 611 N.Y.S.2d 207).   Plaintiff's claim of prejudice, which rests on conclusory, speculative and unsubstantiated assertions, is insufficient to defeat defendant's motion, inasmuch as it is also undisputed that plaintiff received Workers' Compensation benefits from Tempositions (see, Caceras v. Zorbas, 74 N.Y.2d 884, 547 N.Y.S.2d 834, 547 N.E.2d 89;  Singh v Shafi, supra;  Clarke v. Americana House, 186 A.D.2d 530, 588 N.Y.S.2d 794;  Ozarowski v. Yaloz Realty Corp., 181 A.D.2d 763, 581 N.Y.S.2d 248).