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Bonavita v. McNicholas

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 20, 2010

GARY BONAVITA, ET AL., APPELLANTS,
v.
IRVING MCNICHOLAS, ET AL., RESPONDENTS, ET AL., DEFENDANTS.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated September 30, 2008, which granted the motion of the defendants Irving McNicholas and Professional Exterminating Co., Inc., for leave to amend their answer to include an affirmative defense that the action is barred by the Workers' Compensation Law.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

HOWARD MILLER, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS and PLUMMER E. LOTT, JJ.

(Index No. 5699/04)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the respondents' motion pursuant to CPLR 3025(b) for leave to amend their answer to assert an affirmative defense that the action is barred by the Workers' Compensation Law, as the proposed amendment would not cause prejudice or surprise and is neither palpably insufficient nor patently devoid of merit (see CPLR 3025[b]; Liss v Trans Auto Sys., 68 NY2d 15, 22-23; Murray v City of New York, 43 NY2d 400, 404-407; Lucido v Mancuso, 49 AD3d 220, 229; Brown v Collora, 278 AD2d 266, 267).

MILLER, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

20100420

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