Mathews v. Visual Thermoforming

Appellate Division of the Supreme Court of New York

Mathews v. Visual Thermoforming

187 A.D.2d 964, 592 N.Y.S.2d 287, 1992 N.Y. App. Div. LEXIS 13973

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 18, 1992

DocketAppeal No. 1

StatusPublished

Cited by1 cases

This text of 187 A.D.2d 964 (Mathews v. Visual Thermoforming) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mathews v. Visual Thermoforming, 187 A.D.2d 964, 592 N.Y.S.2d 287, 1992 N.Y. App. Div. LEXIS 13973 (N.Y. Ct. App. 1992).

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Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying the motion of defendant Prescotech A Company of Tennetics, Inc. to amend its answer to assert an affirmative defense. When seeking leave to amend a pleading [965]*965pursuant to CPLR 3025 (b), "it is incumbent upon a movant to make 'some evidentiary showing that the claim can be supported’ ” (Mathiesen v Mead, 168 AD2d 736, 737, quoting Cushman & Wakefield v John David, Inc., 25 AD2d 133, 135). Here, the motion was supported only by an unsworn document of counsel, who lacked personal knowledge of the facts. That document was insufficient to warrant the relief sought (see, Santoro v Oppman, 150 AD2d 667, 668; Bonanni v Straight Arrow Publs., 133 AD2d 585, 588). In view of our determination, we do not address the remaining issues raised by the parties. (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Amended Answer.) Present — Green, J. P., Lawton, Boehm, Fallon and Davis, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying the motion of defendant Prescotech A Company of Tennetics, Inc. to amend its answer to assert an affirmative defense. When seeking leave to amend a pleading [965]*965pursuant to CPLR 3025 (b), "it is incumbent upon a movant to make 'some evidentiary showing that the claim can be supported’ ” (Mathiesen v Mead, 168 AD2d 736, 737, quoting Cushman & Wakefield v John David, Inc., 25 AD2d 133, 135). Here, the motion was supported only by an unsworn document of counsel, who lacked personal knowledge of the facts. That document was insufficient to warrant the relief sought (see, Santoro v Oppman, 150 AD2d 667, 668; Bonanni v Straight Arrow Publs., 133 AD2d 585, 588). In view of our determination, we do not address the remaining issues raised by the parties. (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Amended Answer.) Present — Green, J. P., Lawton, Boehm, Fallon and Davis, JJ.

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187 A.D.2d 964, 592 N.Y.S.2d 287, 1992 N.Y. App. Div. LEXIS 13973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathews-v-visual-thermoforming-nyappdiv-1992.

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