Malz v. Wohl

185 A.D.2d 839, 587 N.Y.S.2d 852, 1992 N.Y. App. Div. LEXIS 9921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 1992
• Status: Published

Opinion

— In an action to recover damages, inter alia, for abuse of process, intentional infliction of emotional harm, and unlawful eviction, (1) the defendants appeal from so much of an order of the Supreme Court, Kings County (Vaccaro, J.), dated May 21, 1990, as denied their cross motion for summary judgment, and (2) the plaintiff cross-appeals from so much of the same order as denied his motion for leave to serve an amended complaint to add additional causes of action.

Ordered that the order is reversed insofar as appealed from, on the law, and the defendants’ cross motion for summary judgment dismissing the action is granted; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from; and it is further,

Ordered that the defendants are awarded one bill of costs.

The defendants are entitled to summary judgment since the plaintiff failed to show any issues of fact requiring a trial. Moreover, some of the claims were already litigated in the prior proceedings in this case. We therefore grant the cross motion and dismiss the action.

We further find no improvident exercise of discretion in the court’s denial of the plaintiff’s motion for leave to serve an amended complaint. The motion was made four years after the previous amended complaint was served, there was no reasonable excuse proffered for the delay, and the causes of action sought to be added plainly lack merit (see, Crimmins Contr. Co. v City of New York, 74 NY2d 166; Fahey v County of Ontario, 44 NY2d 934). Bracken, J. P., Sullivan, Balletta and Lawrence, JJ., concur.