Clarke v. Americana House, Inc. (186 A.D.2d 530, 1992)

— In a negligence action to recover damages for personal injuries, etc. the plaintiif appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated June 28, 1990, which granted the defendants’ motion for leave to serve an amended answer raising the affirmative defense of Workers’ Compensation.

Ordered that on the court’s own motion, Katherine H. Clarke, as Administratrix of the Estate of William N. Clarke, is substituted as the party plaintiif, and the caption is amended accordingly; and it is further,

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendants’ motion for leave to serve an amended answer raising the affirmative defense that the action was barred by the Workers’ Compensation Law. Considering that the plaintiff’s decedent was aware of his employment status from the outset and had received Workers’ Compensation benefits, the plaintiff can claim neither prejudice nor surprise (see, Caceras v Zorbas, 74 NY2d 884; Ozarowski v Yaloz Realty Corp., 181 AD2d 763). Harwood, J. P., Balletta, Rosenblatt and Santucci, JJ., concur.