Harry Mayer, Inc. v. Rider

248 A.D.2d 1019, 670 N.Y.S.2d 143, 1998 N.Y. App. Div. LEXIS 3124

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly exercised its discretion in denying defendant’s motion for leave to amend the answer to assert a counterclaim. The proposed counterclaim alleges that plaintiff, who sold dairy cattle to defendant, erroneously charged interest on the amount of the purchase price remaining unpaid after 30 days. Defendant alleges that, when the interest and finance charges imposed on his open account for some 17 years are deducted, defendant has in fact overpaid the account. Leave to amend may be denied where, as here, the proposed amendment is devoid of merit (see, Manufacturers & Traders Trust Co. v McCabe Elec., 187 AD2d 962).

The court properly granted plaintiffs motion for summary judgment. In support of the motion, plaintiff established a prima facie case warranting judgment in its favor, and defendant submitted no evidence in opposition (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Summary Judgment.)

Present — Pine, J. P., Hayes, Callahan, Balio and Boehm, JJ.