Thomson McKinnon Securities, Inc. v. Cioccolanti

135 A.D.2d 624, 522 N.Y.S.2d 202, 1987 N.Y. App. Div. LEXIS 52561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1987
• Status: Published

Opinion

— In an action to recover damages for breach of a brokerage agreement, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Gurahian, J.), dated April 8, 1987, which denied their motion for leave to amend their complaint in order to add a party defendant.

Ordered that the order is affirmed, with costs.

A motion for leave to amend a complaint may be denied if the proposed amendment is devoid of merit (Sharaby v Gamel, 113 AD2d 748). We agree with the Supreme Court that the proposed amendment, which seeks to add Guard Hill Development Corporation as a defendant, is devoid of merit. The plaintiffs’ claim herein rests upon a brokerage agreement entered into solely between them and the defendant Joseph Cioccolanti, individually. Absent any contention that the corporate form was ignored (see, Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163, rearg denied 52 NY2d 829), we see no basis upon which a recovery could be had against Guard Hill Development Corporation, a distinct legal entity, which did not even exist at the time the agreement was allegedly being performed. Accordingly, the Supreme Court did not abuse its discretion in denying the motion. Mangano, J. P., Brown, Lawrence, Weinstein and Kunzeman, JJ., concur.