
    James Dransfield, Respondent, v. Eastern Seaboard Warehouse Corp. et al., Defendants, and Dunkirk Contracting & Roofing Corporation, Appellant.
   In a negligence action to recover damages for personal injuries, defendant Dunkirk Contracting and Roofing Corporation appeals from an order of the Supreme Court, Queens County, dated May 30,1973, which denied its motion for leave to amend its answer to plead a defense that plaintiff’s exclusive remedy is under the Workmen’s Compensation Law. Order reversed, with $50 costs and disbursements, and motion granted, on condition that appellant pay plaintiff a full bill of costs up to date, including the $50 costs and disbursements herein granted to plaintiff. Appellant’s amended answer shall be served within 20 days after entry of the order to be made hereon. Although the motion was made on the eve of trial, Special Term erred in denying the motion, since plaintiff’s exclusive remedy would be under the provisions of the Workmen’s Compensation Law if the factual matter in the defense in question is established. Based upon the facts obtaining here, plaintiff has not shown a clear and disabling prejudice to him (Brecher v. Brecher, 27 N Y 2d 986; Buggiero v. Faulkner, 31 A D 2d 639). Hopkins, Acting P. J., Latham, Gulotta and Christ, JJ., concur.  