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Boccio v. Aspin Trucking Corp.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 1, 1983
93 A.D.2d 983 (N.Y. App. Div. 1983)

Opinion

April 1, 1983

Appeal from the Supreme Court, Erie County, Mintz, J.

Present — Dillon, P.J., Callahan, Doerr, Boomer and Schnepp, JJ.


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 A.D.2d 1028). A pleading which is devoid of merit should not be allowed ( Walter v Bauer, 88 A.D.2d 787; Taylor v Taylor, 84 A.D.2d 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 Boccio was assaulted by another while at a construction site. Subdivision 6 of section 241 Lab. 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 A.D.2d 182, 185.) Thus Special Term properly denied leave to amend the complaint.


Summaries of

Boccio v. Aspin Trucking Corp.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 1, 1983
93 A.D.2d 983 (N.Y. App. Div. 1983)
Case details for

Boccio v. Aspin Trucking Corp.

Case Details

Full title:JOSEPH BOCCIO et al., Appellants, v. ASPIN TRUCKING CORP. et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 1, 1983

Citations

93 A.D.2d 983 (N.Y. App. Div. 1983)

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