Weingarten v. S & R Medallion Corp.

Appellate Division of the Supreme Court of New York

Weingarten v. S & R Medallion Corp.

87 A.D.3d 947, 929 N.Y.2d 864

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

DecidedSeptember 29, 2011

StatusPublished

This text of 87 A.D.3d 947 (Weingarten v. S & R Medallion Corp.) 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.

Bluebook

Weingarten v. S & R Medallion Corp., 87 A.D.3d 947, 929 N.Y.2d 864 (N.Y. Ct. App. 2011).

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Opinion

The court providently exercised its discretion in denying plaintiffs motion. The proposed allegation of a “tacit” modification of the parties’ written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proved at trial and, if necessary, the pleadings can be amended to conform to the proof. Concur — Tom, J.E, Catterson, Renwick, Freedman and Manzanet-Daniels, JJ.

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The court providently exercised its discretion in denying plaintiffs motion. The proposed allegation of a “tacit” modification of the parties’ written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proved at trial and, if necessary, the pleadings can be amended to conform to the proof. Concur — Tom, J.E, Catterson, Renwick, Freedman and Manzanet-Daniels, JJ.

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Bluebook (online)

87 A.D.3d 947, 929 N.Y.2d 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weingarten-v-s-r-medallion-corp-nyappdiv-2011.

Opinion

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