Pelengaris v. Ragone , 53 A.D.2d 859 ( 1976 )

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Suffolk County, entered January 22, 1976, which, after a nonjury trial on an issue of fact held pursuant to a prior order (see CPLR 3212, subd [c]), (1) determined that the infant plaintiff was not an employee of the corporate defendant (sued herein as John Ragone, doing business as South Haven Riding Stables) within the meaning of the Workmen’s Compensation Law, (2) denied defendants’ motions for summary judgment, (3) granted summary judgment to plaintiffs pursuant to CPLR 3212 (subd [b]) striking the first affirmative defense contained in the answer of the corporate defendant and (4) granted plaintiffs’ motion to amend paragraph "ninth” of the complaint by substituting the word "used” for the word "employed”. Order affirmed, with one bill of $50 costs and disbursements payable jointly by appellants. The determination that the infant plaintiff was not an employee of the corporate defendant at the time of the accident is amply supported by the record. Hopkins, Acting P. J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.