Lex Tenants Corp. v. Gramercy North Associates

269 A.D.2d 297, 704 N.Y.S.2d 459, 2000 N.Y. App. Div. LEXIS 2040

Opinion

—Order, Supreme Court, New York County (Barry Cozier, J.), entered January 15, 1999, which, in an action alleging, inter alia, breach of contract and fraud in connection with the cooperative conversion of an apartment building, denied, in part, defendant sponsor’s motion for leave to file an amended answer, unanimously modified, on the law and the facts, to grant that portion of defendants’ motion seeking to amend their answer to interpose a counterclaim for offset for the return of subsidies paid to plaintiff cooperative corporation, and otherwise affirmed, without costs.

The motion court erred in denying so much of defendants’ motion to amend as sought to add to their answer a counterclaim seeking a refund of subsidies paid to plaintiff pursuant to the terms of an offering plan because the proposed amendment was not plainly without merit (see, Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170). The motion court, however, properly denied the motion to amend insofar as it sought to add to defendants’ answer an affirmative defense/ counterclaim for breach of an oral settlement agreement since the purported settlement agreement, not having been evidenced by a properly subscribed writing, much less one reduced to the form of an order, was unenforceable (see, CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 3-4). Concur — Sullivan, P. J., Nardelli, Wallach, Lerner and Buckley, JJ.