Rosenfeld v. Parbrook Construction Co.

280 A.D. 944, 116 N.Y.S.2d 4, 1952 N.Y. App. Div. LEXIS 4316

Opinion

In an action to recover damages for personal injuries, defendant moved (four and a half years after the date of the accident and almost two and a half years after its answer had been interposed) to serve an amended answer alleging that under section 29 of the Workmen’s Compensation Law (as it read prior to September 1, 1951) the failure to commence this action within the time therein prescribed operated as an assignment of the cause of action to the compensation carrier and that plaintiff was not the real party in interest. The motion was granted and plaintiff appeals. Order reversed on the law, with $10 costs and disbursements, and motion denied, with $10 costs. It was an improvident exercise of discretion to permit the amendment of the answer. Permitting the amendment after the expiration of the time limited for the commencement of an action by the compensation carrier upon the cause assigned by the Workmen’s Compensation Law, was prejudicial to the substantial rights of the plaintiff. (Jennings v. Perkins, 277 App. Div. 1143, and eases therein cited; Zulinsky v. Bradford, 279 App. Div. 765.) Nolan, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.