Biney v. Rodriguez

Appellate Division of the Supreme Court of New York

Biney v. Rodriguez

262 A.D.2d 592, 691 N.Y.S.2d 903, 1999 N.Y. App. Div. LEXIS 7608

Appellate Division of the Supreme Court of the State of New York·Decided June 28, 1999·Published

Opinion

—In a negligence action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated April 13, 1998, as denied that branch of her motion which was for leave to amend her answer to interpose an affirmative defense alleging that the plaintiffs exclusive remedy is Workers’ Compensation.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying the defendant leave to amend her answer to interpose an affirmative defense based on Workers’ Compensation, as she failed to proffer sufficient evidence to support the claim that the plaintiff was her special employee (see, Sidor v Zuhoski, 257 AD2d 564; Alejandro v Riportella, 250 AD2d 556; see also, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557; Gonzalez v Lovett Assocs., 228 AD2d 342). O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.

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—In a negligence action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated April 13, 1998, as denied that branch of her motion which was for leave to amend her answer to interpose an affirmative defense alleging that the plaintiffs exclusive remedy is Workers’ Compensation.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying the defendant leave to amend her answer to interpose an affirmative defense based on Workers’ Compensation, as she failed to proffer sufficient evidence to support the claim that the plaintiff was her special employee (see, Sidor v Zuhoski, 257 AD2d 564; Alejandro v Riportella, 250 AD2d 556; see also, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557; Gonzalez v Lovett Assocs., 228 AD2d 342). O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.

Biney v. Rodriguez, 262 A.D.2d 592, 691 N.Y.S.2d 903, 1999 N.Y. App. Div. LEXIS 7608 (N.Y. Ct. App. 1999).

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