| Longo v Long Is. R.R. |
| 2014 NY Slip Op 02269 [116 AD3d 676] |
| April 2, 2014 |
| Appellate Division, Second Department |
| Pasquale Longo et al., Appellants, v Long IslandRailroad, Respondent. |
—[*1] Lewis, Brisbois, Bisgaard & Smith LLP, New York, N.Y. (Peter T. Shapiro ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Queens County (Siegal, J.), dated June 12, 2012, whichgranted the defendant's motion for summary judgment dismissing the complaint anddenied their cross motion for leave to amend the complaint and bill of particulars to addallegations that the defendant violated Labor Law § 240 (1) and 12 NYCRR23-2.1 (b).
Ordered that the order is affirmed, with costs.
The plaintiff Pasquale Longo (hereinafter the injured plaintiff) allegedly was injuredwhile performing demolition work at a building owned by the defendant Long IslandRailroad. The demolition work involved removing lockers from the second floor of thebuilding, transporting the lockers out of the building through a second floor fire escape,and placing the lockers in trailers. As the plaintiff and his coworker picked up a set ofthree lockers, his coworker lost his grip and the lockers fell on the plaintiff's hand.
In December 2009, the injured plaintiff, and his wife suing derivatively, commencedthis action to recover damages for personal injuries and derivative losses resulting fromthe defendant's alleged negligence. In December 2011, the defendant moved forsummary judgment dismissing the complaint. Thereafter, the plaintiffs cross-moved toamend their complaint to add allegations that the defendant violated Labor Law §240 (1) and 12 NYCRR 23-2.1 (b).
"Applications for leave to amend pleadings under CPLR 3025 (b) should be freelygranted unless the proposed amendment (1) would unfairly prejudice or surprise theopposing party, or (2) is palpably insufficient or patently devoid of merit" (Maldonado v Newport Gardens,Inc., 91 AD3d 731, 731-732 [2012]; see RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538[2008]). Under the circumstances of this case, the Supreme Court providently exercisedits discretion in denying that branch of the plaintiffs' cross motion which was for leave toamend the pleadings to allege a violation of Labor Law § 240 (1), since theproposed amendment was palpably insufficient and patently devoid of merit (seeNarducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]). The Supreme Court alsoprovidently exercised its discretion in denying that branch of the plaintiffs' cross motionwhich was for leave to [*2]amend the pleadings to allegea violation of 12 NYCRR 23-2.1 (b), since that section lacks the specificity required tosupport a cause of action under Labor Law § 241 (6) (see Parrales v Wonder WorksConstr. Corp., 55 AD3d 579, 582 [2008]; Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450,452 [2004]; Salinas v BarneySkanska Constr. Co., 2 AD3d 619, 622 [2003]).
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Lott, Romanand Hinds-Radix, JJ., concur. [Prior Case History: 2012 NY Slip Op31597(U).]