Boccio v. Aspin Trucking Corp.

Appellate Division of the Supreme Court of New York

Boccio v. Aspin Trucking Corp.

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 1983

StatusPublished

Cited by6 cases

This text of 93 A.D.2d 983 (Boccio v. Aspin Trucking Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boccio v. Aspin Trucking Corp., 93 A.D.2d 983, 461 N.Y.S.2d 661, 1983 N.Y. App. Div. LEXIS 17894 (N.Y. Ct. App. 1983).

Pincite

Opinion

— 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.

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— 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.

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Bluebook (online)

93 A.D.2d 983, 461 N.Y.S.2d 661, 1983 N.Y. App. Div. LEXIS 17894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boccio-v-aspin-trucking-corp-nyappdiv-1983.

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