Lachajczyk v. Schriber

155 A.D.2d 874, 547 N.Y.S.2d 481, 1989 N.Y. App. Div. LEXIS 14694

Opinion

— Order unanimously affirmed without costs. Memorandum: As a general rule, leave to amend pleadings should be freely granted; in this case, however, the proposed amendment is devoid of merit, and the court did not abuse its discretion by considering the merits (see, Andersen v University of Rochester, 91 AD2d 851, appeal dismissed 59 NY2d 968).

Plaintiff sought to amend his complaint to allege a violation of Labor Law § 240. Liability for a violation of this section cannot be imposed, however, where the contractor has no authority to supervise or control the plaintiff’s activities (Russin v Picciano & Son, 54 NY2d 311; Reeves v Red Wing Co., 139 AD2d 935). The proposed amendment contains no allegation that defendant had authority to supervise or control plaintiff or his activities, and uncontroverted evidentiary materials submitted on the motion demonstrate that such authority did not exist. Plaintiff’s claim that defendant exercised control by furnishing the ladder from which he fell is without merit (see, Magrath v Migliore Constr. Co., 139 AD2d 893). (Appeal from order of Supreme Court, Chautauqua County, Ricotta, J. — amend complaint.) Present — Callahan, J. P., Den-man, Pine, Balio and Lawton, JJ.