Chart v. Mark IV Construction Co.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The court abused its discretion in refusing to grant defendant leave to amend its answer to plead, as a defense, the exclusivity of the Workers’ Compensation Law. "[Ljeave to amend pleadings to include [a workers’ compensation] defense should be freely granted * * * in the absence of operative prejudice” *930(Shine v Duncan Petroleum Transp., 60 NY2d 22, 27; see, Murray v City of New York, 43 NY2d 400, 405). Plaintiffs made no allegations of prejudice in their responding papers. Therefore, defendant’s cross motion for leave to amend the answer should have been granted (see, Annucci v City of New York, 102 AD2d 808).

That part of the cross motion seeking summary judgment based on the workers’ compensation defense was properly denied and plaintiffs’ motion for summary judgment based on plaintiffs’ Labor Law causes of action also should have been denied. There are questions of fact whether those causes of action are barred by the Workers’ Compensation Law (see, Ortiz v Peterson Marina Homes Corp., 199 AD2d 1059). (Appeal from Order of Supreme Court, Monroe County, Rosenbloom, J. — Summary Judgment.) Present — Denman, P. J., Green, Balio, Lawton and Boehm, JJ.