Brunetti v. City of New York

286 A.D.2d 253, 728 N.Y.S.2d 665, 2001 N.Y. App. Div. LEXIS 8053

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 16, 2001
• Status: Published

Opinion

Order, Supreme Court, New York County (Martin Shulman, J.), entered on or about December 29, 1999, which granted defendant City’s motion to amend its answer so as to include the affirmative defense that the action is barred by the Workers’ Compensation Law, and for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion to amend the answer was properly granted absent a showing of prejudice resulting from the delay in asserting the exclusivity of workers’ compensation (see, Murray v City of New York, 43 NY2d 400, 405; see also, Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959). Plaintiffs claim that the motion court 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 not supported with satisfactory proof of the dates of filing and service of the note of issue (see, Cibener v City of New York, 268 AD2d 334). In any event, the motion was properly entertained, in the interest of judicial economy, in order to dispose of a threshold, potentially determinative issue prior to trial (see, Goodman v Gudi, 264 AD2d 758). On the merits, the motion 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 (HPD), 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 NY2d 553; Gannon v JWP Forest Elec. Corp., 275 AD2d 231). As the motion court also found, it is immaterial that plaintiff reported directly to a lead mechanic in the employ of the general employer where the lead mechanic, like plaintiff, was controlled and supervised by HPD. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Marlow, JJ.