Opinion
2003-09254.
Decided June 14, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated September 23, 2003, which granted the defendants' motion for leave to amend their answer to include an affirmative defense that the action was barred under the Workers' Compensation Law and to dismiss the complaint on that ground.
Edward H. Suh and Associates, P.C., Flushing, N.Y. (Anthony M. DeFazio of counsel), for appellants.
Cheven Keely Hatzis, New York, N.Y. (William B. Stock of counsel), for respondents.
Before: NANCY E. SMITH, J.P., SONDRA MILLER, THOMAS A. ADAMS, REINALDO E. RIVERA, ROBERT A. LIFSON, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting the defendants leave to amend their answer to include an affirmative defense that the action was barred under the Workers' Compensation Law. A motion for leave to amend an answer to assert such a defense may be granted in the absence of prejudice or surprise even where, as here, it was first raised after the action was ready to proceed to trial ( see Caceras v. Zorbas, 74 N.Y.2d 884; Murray v. City of New York, 43 N.Y.2d 400, 407; Singh v. Shafi, 252 A.D.2d 494, 495; Lanpont v. Savvas Cab Corp., 244 A.D.2d 208). The plaintiffs failed to show prejudice or surprise resulting from the defendants' delay in asserting the exclusivity of workers compensation as an affirmative defense.
SMITH, J.P., S. MILLER, ADAMS, RIVERA and LIFSON, JJ., concur.