Warner Licensing Co. v. Kitty Fan Koo & Fashion Franchises, Ltd.

281 A.D.2d 190, 721 N.Y.S.2d 235, 2001 N.Y. App. Div. LEXIS 2230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 2001
• Status: Published

Opinion

— Order, Supreme Court, New York County (Barbara Kapnick, J.), entered October 28, 1999, which granted defendant’s cross motion for summary judgment dismissing the complaint only to the extent of granting plaintiff leave to file an amended complaint, unanimously affirmed, without costs.

In light of all proceedings in this matter, we find that the court properly exercised its discretion in permitting amendment of the complaint (see, Consolidated Edison Co. v General Ace. Ins. Co., 204 AD2d 164). The proposed amended complaint sufficiently cured the alleged defects in the original pleading. Although defendant strenuously argues that plaintiff has pleaded its performance of the agreement in merely conclusory terms, defendant has overlooked CPLR 3015 (a), which provides that performance of conditions precedent in a contract need not be pleaded; the burden to plead non-performance “specifically and with particularity” is on the party asserting that contention. Furthermore, plaintiff made a sufficient showing of merit. We have considered defendant’s remaining arguments and find them unavailing. Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Wallach and Buckley, JJ.