Manhattan Real Estate Equities Group LLC v. Pine Equity NY, Inc.

27 A.D.3d 323, 815 N.Y.S.2d 28

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered April 4, 2005, which denied plaintiffs cross motion for partial summary judgment and leave to amend its complaint, unanimously affirmed, with costs.

Plaintiffs motion for summary judgment was premature, since issue had not yet been joined (CPLR 3212 [a]; Costalas v Amalfitano, 305 AD2d 202, 204 [2003]). As to the branch of the motion seeking to add a party defendant, leave to amend a pleading should generally be freely granted, but the party seeking amendment has the burden of establishing the merit of the proposal. Leave to amend a complaint should be denied where the claim is palpably insufficient (Bencivenga & Co. v Phyfe, 210 AD2d 22 [1994]). Here, plaintiff failed to allege facts indicating the proposed additional party would be bound by an agreement to which it was not a signatory. Conclusory assertions that the proposed additional party was simply an extension of one of the defendants did not sufficiently allege a basis for a departure from the general rule that nonparties to an agreement are not bound thereby (National Survival Game of N.Y. v NSG of LI Corp., 169 AD2d 760 [1991]; see also Brainstorms Internet Mktg. v USA Networks, 6 AD3d 318 [2004]). Concur—Tom, J.P., Gonzalez, Sweeny, Catterson and Malone, JJ.