Marcucilli v. Alicon Corp.

48 A.D.2d 703, 368 N.Y.S.2d 249, 1975 N.Y. App. Div. LEXIS 9752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1975
• Status: Published

Opinion

In an action to recover damages for conspiracy to destroy plaintiffs’ business and for libel, (1) defendant Clairol, Inc., appeals from so much of an order of the Supreme Court, Westchester County, entered April 10, 1974, as, after dismissing the two causes of action in the amended complaint on stated grounds (on separate motions by defendants), (a) denied the motions insofar as they sought such relief on other grounds and (b) granted plaintiffs leave to serve an amended complaint; and (2) defendants Alicon Corp. and Agbay appeal from so much of the same order as granted plaintiffs said leave to replead. Order modified by deleting theréfrom the provision which granted plaintiffs leave to serve an amended complaint. As so modified, order affirmed insofar as appealed from, with one bill of $20 costs and disbursements to appellants appearing separately and filing separate briefs. This amended complaint was served pursuant to leave of this court granted on an appeal by plaintiffs from so much of a prior order as dismissed the original complaint for failure to state a cause of action (Marcucilli v Alicon Corp., 41 AD2d 932). In their papers opposing the motions under review plaintiffs failed to request leave to replead and it does not appear that there is good ground to support plaintiffs’ causes of action. Under these circumstances, it was error for Special Term to grant leave to serve a second amended complaint (CPLR 3211, subd [e]; Souveran Fabrics Corp. v Virginia Fibre Corp., 37 AD2d 925; Harry Levine Corp. v Gimbel Accessories, 41 AD2d 637). Rabin, Acting P. J., Hopkins, Martuscello, Cohalan and Munder, JJ., concur.