George v. Sparwood Realty Corp.

34 A.D.2d 768, 311 N.Y.S.2d 422, 1970 N.Y. App. Div. LEXIS 4808

Opinion

Order, entered July 24, 1969, unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs and without disbursements, and motion of defendant for leave to serve an amended answer asserting the affirmative defense of workmen’s compensation granted. In this action for personal injuries brought against a building owner by an alleged employee of the owner’s building agents, plaintiff alleges the failure of defendant “ to secure the payment of compensation for this injured plaintiff as provided by the Workmen’s Compensation Law of the State of New York.” Although the defendant, in its answer, denied an employment of plaintiff, it may nonetheless plead the inconsistent defense of workmen’s compensation coverage. (CPLR 3014; Garter, Macy Go. v. Matthews, 220 App. Div. 679, 690, affd. 247 N. Y. 532; Willis v. Fitzgerald Bros. Brewing Co., 261 App. Div. 357; 3 Weinstein-KornMiller, N. Y. Civ. Prae., par. 3014.11.) It does not appear that the plaintiff has been prejudiced by the delay of the defendant in moving to amend its answer so as to allege coverage for plaintiff’s injuries under the Workmen’s Compensation Law. It was thus an improvident exercise of discretion to deny the motion to amend. (See Robinson v. MacDonald, 21 A D 2d 790; Petrozzi V. Passamonte, 32 A D 2d 716.) Concur—Stevens, P. J., Eager, Capozzoli, Nunez and Bastow, JJ.