Holtz v. E & E Drilling & Testing Co. , 550 N.Y.S.2d 858 ( 1989 )

Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant E & E Drilling and Testing Company, Inc. (EEDT) permission to serve an amended answer alleging the affirmative defense that receipt of workers’ compensation benefits is plaintiff’s sole remedy. Leave to amend shall be freely granted and plaintiff has demonstrated no prejudice (see, CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; Fahey v County of Ontario, 44 NY2d 934, 935). On this record there is an issue of fact regarding the decedent’s employment status at the time of the accident. Thus, it cannot be said that defendant’s defense lacks merit as a matter of law (see, Braxton v Mendel-son, 233 NY 122, 124; Matter of Abramson v Long Beach Mem. Hosp., 103 AD2d 866; Poppenberg v Reliable Maintenance Corp., 89 AD2d 791; Brooks v Chemical Leaman Tank Lines, 71 AD2d 405, 409; Dransfield v Eastern Seaboard Warehouse Corp., 43 AD2d 569). (Appeal from order of Supreme Court, Erie County, Fudeman, J. — leave to serve amended answer; renewal.) Present — Callahan, J. P., Denman, Green, Balio and Lawton, JJ.