Community Energy Alternatives Inc. v. Peatco II

243 A.D.2d 371, 664 N.Y.S.2d 550, 1997 N.Y. App. Div. LEXIS 10786

Opinion

Order, Supreme Court, New York County (Lewis Friedman, J.), entered on or about November 18, 1996, which denied plaintiffs’ motion to amend the complaint, and granted defendant Donaldson Lufkin & Jenrette Securities Corp.’s cross motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

The IAS Court correctly perceived that this Court’s prior order (228 AD2d 309) had rejected, as nonmeritorious, the only basis for a fraud cause of action that had not been explicitly rejected by the IAS Court, namely, plaintiffs’ unpled allegations of misrepresentations as to the identity of the manufacturer of the ancillary equipment that was to be used in the power plant project in which plaintiffs had invested, and properly denied plaintiffs’ motion to amend the complaint to add such a cause of action as precluded by law of the case. Rejection of this unpled, but proposed, cause of action left no conceivable claim remaining as against defendant Donaldson Lufkin, warranting the award of summary judgment in its favor. We have considered plaintiffs’ other arguments and find them to be without merit. Concur—Murphy, P. J., Nardelli, Williams and Colabella, JJ.