Carrillo v. Greenpoint Terminal Warehouse, Inc.

Appellate Division of the Supreme Court of New York

Carrillo v. Greenpoint Terminal Warehouse, Inc.

33 A.D.2d 909, 307 N.Y.S.2d 579, 1970 N.Y. App. Div. LEXIS 5779

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 1970

StatusPublished

This text of 33 A.D.2d 909 (Carrillo v. Greenpoint Terminal Warehouse, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carrillo v. Greenpoint Terminal Warehouse, Inc., 33 A.D.2d 909, 307 N.Y.S.2d 579, 1970 N.Y. App. Div. LEXIS 5779 (N.Y. Ct. App. 1970).

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Opinion

In an action to recover damages for wrongful death and conscious .pain and suffering, defendant Greenpoint Terminal Warehouse, Inc., appeals, as limited .by its brief, from so much of an order of the Supreme Court, Kings County, dated ¡May 28, 1969, as, on reargument, adhered to the original decision denying said defendant’s motion for leave to amend its answer so as to include therein an affirmative defense that plaintiff’s exclusive remedy is under the Workmen’s Compensation Law. Order reversed insofar as appealed [910]*910from, on .the law and the facts, without costs, and motion granted. The time within which said defendant may serve its amended answer is extended until 20 days after entry of the order hereon. Whether the defense will he effectual will depend on the proof at the trial (see Mitchell v. A. A. Truck Renting Corp., 9 A D 2d 682, 683). The defense is jurisdictional (Morris v. Luck, 28 Misc 2d 831, 833-834) and in our opinion the moving affidavits provide an insufficient basis for denying the motion in the absence of further evidence that may be introduced at the trial (cf. Van Wie v. Gridley & Son, 21 A D 2d 842). Until a trial has been had to determine all the facts, we think it cannot he decided that the amendment is of no avail (cf. Currie v. International Magazine Co., 256 N. Y.. 106, 109-110). Beldoek, P. J., iChrist, 'Rabin, Benjamin and Munder, JJ., concur.

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In an action to recover damages for wrongful death and conscious .pain and suffering, defendant Greenpoint Terminal Warehouse, Inc., appeals, as limited .by its brief, from so much of an order of the Supreme Court, Kings County, dated ¡May 28, 1969, as, on reargument, adhered to the original decision denying said defendant’s motion for leave to amend its answer so as to include therein an affirmative defense that plaintiff’s exclusive remedy is under the Workmen’s Compensation Law. Order reversed insofar as appealed [910]*910from, on .the law and the facts, without costs, and motion granted. The time within which said defendant may serve its amended answer is extended until 20 days after entry of the order hereon. Whether the defense will he effectual will depend on the proof at the trial (see Mitchell v. A. A. Truck Renting Corp., 9 A D 2d 682, 683). The defense is jurisdictional (Morris v. Luck, 28 Misc 2d 831, 833-834) and in our opinion the moving affidavits provide an insufficient basis for denying the motion in the absence of further evidence that may be introduced at the trial (cf. Van Wie v. Gridley & Son, 21 A D 2d 842). Until a trial has been had to determine all the facts, we think it cannot he decided that the amendment is of no avail (cf. Currie v. International Magazine Co., 256 N. Y.. 106, 109-110). Beldoek, P. J., iChrist, 'Rabin, Benjamin and Munder, JJ., concur.

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Bluebook (online)

33 A.D.2d 909, 307 N.Y.S.2d 579, 1970 N.Y. App. Div. LEXIS 5779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrillo-v-greenpoint-terminal-warehouse-inc-nyappdiv-1970.

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