Baijnauth
v.
City of New York

Appellate Division of the Supreme Court of New York, First DepartmentAug 16, 2001
286 A.D.2d 254 (N.Y. App. Div. 2001)
286 A.D.2d 254728 N.Y.S.2d 665

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August 16, 2001.

Order, Supreme Court, New York County (Martin Shulman, J.), entered July 6, 1999, which, after a framed-issue hearing, permitted defendant City to file an answer containing the affirmative defense that action is barred by the Workers' Compensation Law, and dismissed the complaint, unanimously affirmed, without costs.

Brian J. Isaac, for plaintiff-appellant.

Ellen Ravitch, for defendant-respondent.

Before: Sullivan, P.J., Rosenberger, Ellerin, Wallach, Marlow, JJ.


The amendment to the answer was properly permitted absent a showing of prejudice resulting from the delay in asserting the exclusivity of workers' compensation (see, Murray v. City of New York, 43 N.Y.2d 400, 405; see also, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959). Plaintiff's claim that the hearing court, in effect, entertained a motion for summary judgment made more than 120 days after the filing of the note of issue, and thereby violated CPLR 3212(a), is unavailing, considerations of judicial economy providing good cause to dispose of this threshold, potentially determinative issue prior to trial (see, Goodman v. Gudi, 264 A.D.2d 758). On the merits, the hearing court correctly found that plaintiff was defendant's special employee as a matter of law, where defendant, through its Department of Housing Preservation and Development, exclusively controlled the hiring, firing, discipline, promotion, work performed, sick leave, vacations and every other aspect of plaintiff's employment, with the exception of payroll services, which were provided by plaintiff's general employer (see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553; Gannon v. JWP Forest Elec. Corp., 275 A.D.2d 231).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.