679 N.Y.S.2d 140 | N.Y. App. Div. | 1998
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered March 27, 1998, which, in an action under Labor Law § 240 (1), denied plaintiffs’ motion to dismiss defendant’s and third-party defendant’s recalcitrant worker defense on the ground that it had not been pleaded and for summary judgment upon dismissal of such defense, or, in the alternative, to compel post-note-of-issue disclosure as to such defense and to sever the third-party action, unanimously affirmed, without costs.
Assuming arguendo the allegation in the answers of “plaintiffs culpable conduct” was insufficient to raise a “recalcitrant worker” defense (cf., Stolt v General Foods Corp., 81 NY2d 918), we nevertheless affirm, on the ground that plaintiffs waived objection to any such pleading defect by addressing the recalcitrant worker defense at length on the merits on the prior motion for summary judgment (see, 236 AD2d 311). Under the circumstances, plaintiffs’ present motion was an improper