Brugnano v. Merrill Lynch & Co.

Order, Supreme Court, New York County (Carol Huff, J.), entered November 7, 1994, which granted both a motion and cross-motion to dismiss the complaint and the related additional-party pleadings and denied plaintiffs’ motion for leave to amend their bill of particulars, unanimously affirmed, without costs.

*19Since plaintiff employee was employed to clear away the very debris that posed a hazard in the work place, the IAS Court properly dismissed the complaint (Kowalsky v Conreco Co., 264 NY 125). Defendants could not have provided plaintiff with a work place that was safe from the defect that his employer was engaged to eliminate (Senkbeil v Board of Educ., 23 AD2d 587, 589, affd 18 NY2d 789). The denial of amendment of a bill of particulars was justified by the age of the case, the timing of the motion to amend and the lack of special circumstances justifying the amendment (Spielberger v Giambalvo, 207 AD2d 877). As the proposed new pleadings invoke two Industrial Code sections by number but fail to include factual support for such invocation, "plaintiffs failed to * * * allege facts in their pleadings to establish a violation of [the applicable] regulation[s]” (Lawyer v Rotterdam Ventures, 204 AD2d 878, 880, lv dismissed 84 NY2d 864). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.