
    Gerard Brooks et al., Appellants, v City of New York, Respondent.
    [667 NYS2d 253]
   Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered August 28, 1996, which, in an action by a laborer to recover for personal injuries, granted defendant owner’s motion to amend its answer to include the affirmative defense of exclusivity of workers’ compensation and for summary judgment dismissing the complaint based on that defense, unanimously modified, on the law, to deny summary judgment based on such affirmative defense and to reinstate the complaint, and otherwise affirmed, without costs.

The motion to amend the answer was properly granted, there being no showing of prejudice resulting from the delay in asserting, prior to jury selection, the exclusivity of workers’ compensation as an affirmative defense (see, Sanfilippo v City of New York, 239 AD2d 296; see also, Caceras v Zorbas, 74 NY2d 884; Lanpont v Savvas Cab Corp., 244 AD2d 208, 209-210). However, so much of the motion as sought summary judgment was improperly granted upon a finding that plaintiff was defendant’s special employee as a matter of law, there being issues of fact in that regard, as defendant now concedes apparently on constraint of Sanfilippo v City of New York (supra). Concur—Ellerin, J. P., Nardelli, Wallach and Rubin, JJ.  