Hill v. Giuliani

249 A.D.2d 28, 670 N.Y.S.2d 493, 1998 N.Y. App. Div. LEXIS 3805

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about July 24, 1997, which, to the extent appealed as limited by plaintiffs’ brief, denied plaintiffs’ motion for leave to amend the complaint to add a claim under General Municipal Law § 51, unanimously affirmed, without costs.

A taxpayer action pursuant to General Municipal Law § 51 against a public official does not lie unless the official conduct complained of, in addition to being illegal, involves fraud, collusion, or personal gain (see, Duffy v Longo, 207 AD2d 860, 865, appeal dismissed 86 NY2d 779; Beresford Apts. v City of New York, 238 AD2d 218, lv denied 89 NY2d 815). Since plaintiffs failed to allege fraud or collusion on the part of the Mayor in failing to fund the Health and Hospitals Corporation at the minimum level required by statute, or that his actions were motivated by personal gain, the IAS Court properly denied plaintiffs’ motion to amend the complaint to add a General Municipal Law § 51 claim so as to convert this matter into a taxpayer action. Notwithstanding the policy liberally favoring permission to amend pleadings, a court may refuse to grant such permission where, as here, the claim the movant would add does not lie, or is completely lacking in merit (see, Rachmani Corp. v 19th St. Assocs., 214 AD2d 358, lv dismissed in part and denied in part 87 NY2d 894). We have considered plaintiffs’ remaining arguments and find them to be without merit. Concur — Milonas, J. P., Nardelli, Mazzarelli and Saxe, JJ.