Boccio v. Aspin Trucking Corp.

Apr 1, 1983
Versions:93 A.D.2d 983
461 N.Y.S.2d 661
1983 N.Y. App. Div. LEXIS 17894

— Order unanimously affirmed, without costs. Memorandum: Plaintiffs appeal from that part of an order which denied their motion for leave to amend their complaint to plead a cause of action under the Labor Law. Leave to amend should be freely given (CPLR 3025, subd [b]) without regard to the merits or legal sufficiency of the proposed amended pleading unless the pleading is clearly and patently insufficient on its face (De Forte v Allstate Ins. Co., 66 AD2d 1028). A pleading which is devoid of merit should not be allowed (Walter v Bauer, 88 AD2d 787; Taylor v Taylor, 84 AD2d 947). Here, neither the original nor the amended pleading asserts a basis for a violation of the Labor Law. The only inference to be drawn from the pleadings is that plaintiff Joseph Boecio was assaulted by another while at a construction site. Subdivision 6 of section 241 of the Labor Law, which plaintiffs claim to be applicable, does not require a contractor or an owner to provide protection from assaults. Neither that section nor any other provision of the Labor Law should ‘be implemented by decisional law so as to establish a cause of action and a right of recovery not contemplated by the Legislature.” (Deso v Albany Ladder Co., 26 AD2d 182, 185.) Thus Special Term properly denied leave to amend the complaint. (Appeal from order of Supreme Court, Erie County, Mintz, J. — amend complaint.) Present — Dillon, P. J., Callahan, Doerr, Boomer and Schnepp, JJ.