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 A.D.2d 296; see also, Caceras v. Zorbas, 74 N.Y.2d 884; Lanpont v. Savvas Cab Corp., 244 A.D.2d 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.