American Theatre for the Performing Arts, Inc. v. Consolidated Credit Corp.

45 A.D.3d 506, 846 N.Y.S.2d 60

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J), entered May 26, 2006, which, to the extent appealable and as limited by plaintiffs brief, denied plaintiffs motion for renewal of a prior order that had denied leave to serve an amended complaint, unanimously affirmed, with costs.

A request to amend a pleading, regardless of the statutory imperative that it be freely granted (CPLR 3025 [b]), requires an examination of the underlying merit to determine if there is evidentiary proof that could be considered on a motion for summary judgment (Nab-Tem Constructors v City of New York, 123 AD2d 571, 572 [1986]). Affirmance is warranted here because there is no showing of merit to the amended pleadings. None of the proposed additional parties was a signatory to the original contract; the fraud claim is simply a recast breach-of-contract claim; and the civil-conspiracy-to-commit-fraud claim fails because of the lack of viability for the fraud claim. Concur— Tom, J.P., Saxe, Friedman, Williams and Buckley, JJ.