Mestel & Co. v. Smythe

181 A.D.2d 501, 581 N.Y.S.2d 586, 1992 N.Y. App. Div. LEXIS 3472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1992
• Status: Published

Opinion

— Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered May 6, 1991, which, insofar as appealed from, denied plaintiffs cross motion for leave to amend its complaint as against defendant Lindsey and for renewal of the order of the same court, entered March 25, 1991, denying plaintiffs motion for a preliminary injunction and granting defendant Lindsey’s cross motion to dismiss the complaint, unanimously affirmed, without costs. The appeal from that portion of the same order as denied plaintiffs cross motion for reargument is dismissed as nonappealable, without costs.

The IAS court’s denial of plaintiffs cross motion for renewal was not an abuse of discretion. The motion was not supported by new facts that could not have readily and with due diligence been made part of the original motion, and plaintiff failed to offer a valid excuse for not submitting the additional facts on the original motion (Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994). Nor was it an abuse of discretion to deny the plaintiffs cross motion insofar as it sought leave to amend the complaint so as to state, with more particularity, causes of action as against Lindsey, the proposed new allegations being conclusory, speculative and unsupported by any evidentiary showing establishing the merits of the proposed pleading (Webster Corp. v Bozell & Jacobs, 167 AD2d 145, 146).

We have considered the plaintiffs remaining claims and find them to be without merit. Concur — Murphy, P. J., Rosenberger, Ellerin, Kupferman and Kassal, JJ.