Jones v. Bartlett

—Order unanimously affirmed without costs. Memorandum: We agree with plaintiff that defendants should have moved to amend their answer to assert the defense based on Workers’ Compensation Law § 29 (6) before including that defense as one of the bases for their motion for summary judgment dismissing the amended complaint (see, Cole v Rappazzo Elec. Co., 267 AD2d 735, 738; see also, Murray v City of New York, 43 NY2d 400, 404-406, rearg dismissed 45 NY2d 966). We conclude, however, that Supreme Court nevertheless properly granted defendants’ motion and denied plaintiff’s cross motion for…