Acker v. Rochester Gas & Electric Corp.

— Order unanimously affirmed with costs. Memorandum: The affidavits, depositions and other material submitted by the parties on defendant’s motion for summary judgment reveal elements of employment supporting both general employment and special employment for purposes of the Workers’ Compensation Law. Under these circumstances, the issue of special employment is a factual one which must be resolved by the trier of fact (see, Matter of Vinciguerra v Carvel Corp., 127 AD2d 915; Brooks v Chemical Leaman Tank Lines, 71 AD2d 405). The court did not abuse its discretion by permitting amendment of the complaint. Leave to amend is to be freely granted (CPLR 3025 [b]), and defendant failed to demonstrate any surprise or prejudice it would suffer by reason of the amendment (see, McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755). (Appeal from order of Supreme Court, Monroe County, Cicoria, J. — summary judgment.) Present — Dillon, P. J., Denman, Balio, Lawton and Davis, JJ.