| Alatorre v Hee Ju Chun |
| 2007 NY Slip Op 07383 [44 AD3d 596] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Rodolfo Alatorre, Respondent, v Hee Ju Chun et al.,Appellants. |
—[*1] Taub & Marder, New York, N.Y. (Frank N. Eskesen of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from (1) so much of an order of the Supreme Court, Kings County (Hurkin-Torres,J.), dated August 23, 2006, as denied that branch of their motion which was for leave to serve anamended answer, and (2) so much of an order of the same court dated February 7, 2007, asdenied that branch of their motion which was for leave to renew the prior motion.
Ordered that the order dated August 23, 2006 is reversed insofar as appealed from, on thelaw, that branch of the motion which was for leave to serve an amended answer is granted, andthe defendants are directed to serve their amended answer within 30 days after service upon themof a copy of this decision and order; and it is further,
Ordered that the appeal from the order dated February 7, 2007 is dismissed as academic; andit is further,
Ordered that the defendants are awarded one bill of costs.
"Leave to amend or supplement pleadings should be freely granted unless the amendmentsought is palpably improper or insufficient as a matter of law, or unless prejudice and surprisedirectly result from the delay in seeking the amendment" (Maloney Carpentry, Inc. v [*2]Budnik,37 AD3d 558, 558 [2007]; seeEmilio v Robison Oil Corp., 28 AD3d 417, 418 [2006]; CPLR 3025 [b]).
We cannot conclude, as a matter of law, that the exclusive remedy provisions of Workers'Compensation Law §§ 11 and 29 (6) have no possible application in this case.Rather, the viability of that affirmative defense turns on as yet unresolved issues of fact.Moreover, the plaintiff, who applied for and received workers' compensation benefits inconnection with the subject accident and was well aware that the defendant Hee Ju Chun was aco-employee, would be neither surprised nor prejudiced by the proposed amendment. Inasmuchas the proposed amendment was neither palpably insufficient as a matter of law nor patentlydevoid of merit, leave to amend the answer should have been granted (see Crespo v Pucciarelli, 21 AD3d1048, 1049 [2005]; CPLR 3025 [b]; cf. Jacobsen v Amedio, 218 AD2d 872 [1995]).
In light of our determination, we need not address whether that branch of the defendants'motion which was for leave to renew was properly denied. Spolzino, J.P., Krausman, Fisher andAngiolillo, JJ., concur.