The following papers numbered 1 to ___ read on this motion, _______________________

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Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Defendants' motion for an Order pursuant to CPLR § 3025(b) granting leave to amend its Answer to include the exclusivity of Workers' Compensation as an Affirmative Defense is granted.

Defendants' motion for an Order pursuant to CPLR § 3212 granting summary judgment based on the exclusivity of Workers' Compensation is denied.

On March 12, 2005, Plaintiff was working as a cleaning lady and working within a theatre located at 208 West 41st Street, New York, NY, when she was caused to slip and fall on an interior backstage staircase. She testified that Nederlander Production Theatrical paid her, (A. Ortiz EBT at 8:2-7), and that she was supervised by a house manager who was employed by the same entity, (id. at 9:17-25; 10:2-4), and who was the only one that told her what her day-to-day job would be (id. at 10:5-9). Defendant ROSE NEDERLANDER ASSOCIATES, INC. owned 58% and J. NED, INC. owned 42% of the theatre where Plaintiff was working at the time of her alleged incident. (V. Rivera Aff. Supp. at 37.) As such, each pays 58% and 42% of all theatre-related costs (id. at 38). However, Defendant ROSE NEDERLANDER ASSOCIATES, INC. operates, manages, and controls all aspects of the theatre at issue (id. at 39).

First, Defendants contend that they are entitled to amend the Answer to include the exclusivity of Workers' Compensation as an Affirmative Defense and to dismiss the Complaint based on this defense. The Court agrees.

Next, Defendants theorize that since Nederlander Production Theatrical/ Nederlander Producing Company of America was a "common paymaster" that paid Plaintiff salary from [*2]monies supplied by Defendant ROSE NEDERLANDER ASSOCIATES, INC., Defendant ROSE NEDERLANDER ASSOCIATES, INC. it is entitled to rely on the exclusivity of Workers' Compensation as a bar to this suit.

They also argue that since Defendant J. NED, INC. is listed and insured under the same Workers' Compensation policy as Nederlander Production Theatrical/Nederlander Producing Company of America, it is also covered by Workers' Compensation. Defendants rely on Spencer v. Crothall Healthcare, 38 AD3d 527 and Martinez v. 52 West 77th Street, 39 AD3d 503, in support of this contention. The Court finds that the cases relied on by Defendant are distinguishable from this matter and, thus, inapplicable and unavailing.

Amending the Answer

First, Defendants are entitled to amend the Answer as requested. All the parties knew from at least June 4, 2008, the time of Plaintiff's deposition, that she had initiated the Workers' Compensation process. (A. Ortiz EBT at 206:19-25.) Therefore, she would be hard-pressed now to claim prejudice. There is also sufficient evidence in the record for the Court to determine that the proposed amendment has merit.

It is axiomatic that leave to amend pleadings should be freely given, that the determination of whether to allow or disallow the amendment is committed to the court's discretion. . . . In determining whether to grant a motion to amend an answer, the court should consider the merit of the proposed defense and whether the plaintiff will be prejudiced by the delay in raising it.

Lanpont v. Savvas Cab Corp., 244 AD2d 208, 209-10. (citations omitted).

Summary Judgment

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Alvarez v. Prospect Hosp., 68 NY2d 320, 324.

Workers' Compensation

"[A]n injured person who is entitled to receive Workers' Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer." Soto v. Akam Assoc., Inc., 61 AD3d 665 (citations omitted). "A general employee of one employer may also be in the special employ of another, notwithstanding the [*3]general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits." Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 556-57. (citations omitted). "Many factors are weighed in deciding whether a special employment relationship exists, and generally no one is decisive. While not determinative, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee's work." Id. at 357-58.

The court in Spencer found that plaintiff was defendant hospital's "general employee" because the hospital had paid her wages, provided her with worker's compensation benefits and made the final decision whether to hire, discipline, or fire her. Thus, the hospital was entitled to rely on the exclusivity of workers' compensation is dismissing the Complaint. See Spencer v. Crothall Healthcare, Inc., 38 AD3d 527, 528. In Martinez, the court found that plaintiff was St. Luke's "special employee" because St. Luke: supplied the funds from which plaintiff's paycheck was drawn; paid for the workers' compensation policy that covered plaintiff; hired and supervised plaintiff; had the authority to discipline and fire the plaintiff; and supplied plaintiff's work equipment. See Martinez v. Fifty Two W. Seventy Seventh St. Corp., 39 AD3d 503-04.

Defendants have failed to show that Plaintiff was either its "general" or "special" employee. Although Plaintiff may have been paid by funds supplied by Defendant ROSE NEDERLANDER ASSOCIATES, INC., there is no evidence that either Defendant paid for the applicable Workers' Compensation policy. On the contrary, its witness stated that ROSE NEDERLANDER ASSOCIATES, INC. was a "named insured" on the policy (F. Belviso EBT at 52:13-22), and was uncertain whether J. NED, INC. was even a "named insured" (id. at 53:18-19). There is also no evidence in the record that either Defendant hired and supervised Plaintiff, had the authority to discipline and fire Plaintiff, or supplied Plaintiff with the tools of her employment. Therefore, regardless of the "common paymaster" issue raised by Defendants, their application must be denied. See Roehm v. RLB Dev., LLC, 51 AD3d 1406, 1407 (holding that the "Supreme Court properly denied defendant's motion inasmuch as defendant failed to meet its initial burden of establishing that plaintiff was either its employee or special employee'").

The foregoing shall constitute the decision and order of this Court.