BOCCIO v. ASPIN TRUCKING CORP

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.