In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bernstein, J.), dated March 14, 1994, which denied their motion to amend their answer to include an affirmative defense that the action was barred under the Workers’ Compensation Law and for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the branch of the defendants’ motion which was for leave to serve an amended answer is granted, the amended answer is deemed served, the branch of the defendants’ motion which was for summary judgment is granted, the complaint is dismissed, and the prior order of the same court, dated January 15, 1993, granting summary judgment to the plaintiff on the issue of liability, is vacated.
In March 1982, the plaintiff, a volunteer auxiliary police of
[684] ficer with the 84th precinct in Brooklyn, was injured when his patrol car was struck in the rear by another patrol car. This action to recover damages for personal injuries was commenced in the Supreme Court by the plaintiff in June 1982. The defendants’ answer, dated September 23, 1982, did not assert an affirmative defense under the Workers’ Compensation Law.
The plaintiff was awarded approximately $23,000 in no-fault medical benefits, on default, after the defendants failed to appear at an arbitration held on February 5, 1986, pursuant to the New York Motor Vehicle No-Fault Insurance Law.
On October 2, 1985, the plaintiff signed an agreement to pursue Workers’ Compensation benefits and to repay to the defendants sums recovered thereunder, in an amount equal to the no-fault benefits he received. In January 1986, the plaintiff’s application for Workers’ Compensation benefits was denied on default after his failure to appear at two scheduled hearings.
On January 15, 1993, the Supreme Court granted the plaintiff’s motion for summary judgment on the issue of liability. By order to show cause, dated December 10, 1993, the defendants moved for leave to amend their answer to include an affirmative defense that the action was barred under the Workers’ Compensation Law and for an order granting summary judgment in their favor dismissing the complaint. The Supreme Court denied the motion in its entirety reasoning that, by failing to raise the workers’ compensation defense prior to the time that summary judgment was granted to the plaintiff on the issue of liability, the defendants had waived the defense. We disagree. The affirmative defense of workers’ compensation may be waived "only by a defendant ignoring the issue to the point of final disposition itself’ (Murray v City of New York, 43 NY2d 400, 407; see also, Caceras v Zorbas, 148 AD2d 339, affd 74 NY2d 884; Rainey v Jefferson Vil. Condo No. 11 Assocs., 203 AD2d 544). Here, because there was no finding as to damages, final disposition has not been reached (see, Leone v Columbia Sussex Corp., 203 AD2d 430). While we do not condone the "unwarranted and inordinate delay” by the defendants in failing to earlier raise this defense, the well-settled law in this area mandates that leave to amend be granted (Caceras v Zorbas, supra, at 340).
Moreover, contrary to the plaintiff’s arguments, he is not prejudiced or surprised by the amendment of the answer. That he asserted and thereafter abandoned a workers’ compensation claim evinces his knowledge of a possible remedy under that law. We are unpersuaded by the plaintiff’s argument that, as a
[685] volunteer, he believed that he was ineligible for workers’ compensation. O’Brien, J. P., Santucci and Joy, JJ., concur.
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