The motion to amend the answer was properly granted, there being no showing of prejudice resulting from the delay in asserting the exclusivity of workers' compensation as an affirmative defense ( see, Murray v. City of New York, 43 N.Y.2d 400; Caceras v. Zorbas, 74 N.Y.2d 884). The companion motion for summary judgment, however, was improperly granted upon a finding that plaintiff was defendant's special employee as a matter of law. A finding of special employment is justified only where the special employer exerts complete and exclusive control over the purported special employee, as to whom the general employer has relinquished all control. ( Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553, 557; Wawrzonek v Central Hudson Gas Elec. Corp., 276 N.Y. 412, 419.) Here, there are questions of fact as to, inter alia, who — Gotham Building Maintenance, plaintiffs general employer, or the City, the purported special employer — supervised and controlled plaintiff's work and set the qualifications and conditions of employment. Contrary to the IAS Court's holding, the contract between the City and Gotham does not, as a matter of law, settle the question. ( See, e.g, Thompson v. Grumman Aerospace Corp., supra, at 559-560.)
Concur — Sullivan, J.P., Milonas, Nardelli and Williams, JJ.