Smith v. Oneida Sales & Service, Inc. , 809 N.Y.S.2d 741 ( 2006 )

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered October 22, 2004. The order, insofar as appealed from, granted the motion of defendant Oneida Sales and Service, Inc., doing business as Oneida Concrete Products, Inc., for leave to serve an amended answer asserting Workers’ Compensation Law § 29 as an affirmative defense.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion in granting the motion of Oneida Sales and Service, Inc., doing business as Oneida Concrete Products, Inc. (defendant), for leave to serve an amended answer asserting Workers’ Compensation Law § 29 as an affirmative defense (see generally Murray v City of New York, 43 NY2d 400, 404-405 [1977], rearg dismissed 45 NY2d 966 [1978]). Mere lateness in the filing of such a motion does not bar the amendment. Rather, there “must be lateness coupled with significant prejudice to the other side” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; see McFarland v Michel, 2 AD3d 1297, 1300 [2003]). Here, plaintiff alleges that he was prejudiced by the delay because he is unable to commence a timely action against his direct employer. Plaintiff has failed to establish the requisite significant prejudice, however, because defendant’s motion herein did not affect the ability of plaintiff to commence a direct action against his direct employer, and we note in any event that the same affirmative defense as that asserted herein would apply equally in an action against plaintiffs direct employer. In addition, plaintiff “cannot claim prejudice or surprise because he was aware of his employment status from the outset and had received workers’ compensation benefits” (Caceras v Zorbas, 74 NY2d 884, 885 [1989]; see Ramirez v Armstrong, 242 AD2d 871 [1997]). Present—Pigott, Jr., P.J., Gorski, Smith, Green and Hayes, JJ.