There is no basis to disturb the jury's apportionment of liability which is supported by the record (see, Wiseberg v. Douglas Elliman-Gibbons and Ives, Inc., 224 A.D.2d 361, 362). The accident occurred when plaintiff stepped back to avoid being hit by falling lumber and slipped on ice covered by ash. Although plaintiff had checked his surroundings prior to commencing the job and determined it was safe to proceed, the lighting in the work area was dim. Accordingly, there was an adequate basis for the jury's conclusion that plaintiff was not at fault for failing to notice the ash-covered patch of ice (cf., Doyne v. Barry, Bette Led Duke, Inc., 246 A.D.2d 756). Also adequately supported was the jury's 30% liability apportionment to Turner since the record showed that Turner retained more than general supervisory power over the work (see, Freitas v. New York City Tr. Auth., 249 A.D.2d 184; cf., Buccini v. 1568 Broadway Assocs., 250 A.D.2d 466). The evidence showed that Turner was responsible for advising Northberry if the work was unsatisfactory or if there was an unsafe condition at the site and that Turner had the authority to stop work being performed unsafely. Turner was aware of the conditions at the work site and set up work site safety practices regarding accumulations of snow and ice. Northberry's vice president testified that Northberry had no such practice other than as directed by Turner. Thus, there was a rational basis for the jury to find that, notwithstanding Northberry's contractual obligation to clear its work area, Turner retained sufficient supervisory authority over the work to support the imposition of liability.
We find the awards for damages excessive to the extent indicated.
The court properly granted preclusive effect as against Northberry to a Workers' Compensation Board determination that plaintiff's aggravated back injury was causally related to the accident (see, Ryan v. New York Tel., 62 N.Y.2d 494; Lee v. Jones, 230 A.D.2d 435, lv denied 91 N.Y.2d 802).
The court properly deemed Turner's pleading asserting cross claims and counterclaims to be a third-party claim against Northberry. Any defect in the commencement of the action was waived by Northberry, which participated therein on the merits and never rejected the defective pleading (see, Matter of Fry v. Vil. of Tarrytown, 89 N.Y.2d 714, 720-721; Urena v. NYNEX, Inc., 223 A.D.2d 442; Nardi v. Hirsh, 250 A.D.2d 361, 364). Contrary to Northberry's claim, defective filing is waivable (Fry v. Vil. of Tarrytown, supra).
Furthermore, the court properly permitted Turner to amend its third-party complaint to assert a claim for breach of contract to procure insurance. Leave to amend pleadings should be freely granted absent prejudice or surprise (Prote Contr. Co, Inc. v. Bd. of Educ. of the City of New York, 249 A.D.2d 178). In the absence of prejudice, mere delay is insufficient to defeat the amendment (17 Vista Fee Assocs. v. Teacher's Ins. Annuity Assn. of Am., 259 A.D.2d 75, 84). Northberry has not demonstrated prejudice resulting from Turner's delay in seeking the amendment. Notably, Northberry had notice of the breach of contract claim since it was asserted in the bill of particulars of the other third-party plaintiffs, which contained a claim identical to the one asserted by Turner. Moreover, Northberry was provided with a copy of the contract between Northberry and Turner together with the bill of particulars. Turner does not dispute that it was covered by its own insurance covering the risk for which Northberry was supposed to obtain insurance. Therefore, the proper measure of Turner's recovery from Northberry would be the full cost of insurance to Turner, including, to the extent pertinent, the premiums it paid for its own insurance, any out-of-pocket costs that may have been incurred incidental to the policy, and any increase in its future insurance premiums resulting from the present liability claim (Inchaustegui v. 666 5th Avenue Limited Partnership, 96 N.Y.2d 111; Trokie v. York Preparatory School, 284 A.D.2d 129, 726 N.Y.S.2d 37).
The court properly permitted the testimony of a union witness notwithstanding plaintiff's failure to disclose the identity of the witness prior to trial. The witness, who testified about the terms of plaintiff's pension plan, was a fact witness and not an expert witness. Thus, the disclosure requirement in CPLR 3101(d)(1) was inapplicable (see, Rook v. 60 Key Centre, Inc., 239 A.D.2d 926; Santariga v. McCann, 161 A.D.2d 320, 321).
The Decision and Order of this Court entered herein on December 19, 2000 ( 278 A.D.2d 116) is hereby recalled and vacated. See M-4066 decided simultaneously herewith.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.