American Theatre for the Performing Arts, Inc. v. Consolidated Credit Corp.

Nov 29, 2007
Versions:45 A.D.3d 506
846 N.Y.S.2d 60

American Theatre for the Performing Arts, Inc., Appellant, v Consolidated Credit Corporation et al., Respondents. [846 NYS2d 60]

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 26, 2006, which, to the extent appealable and as limited by plaintiff‘s brief, denied plaintiff‘s motion for renewal of a prior order that had denied leave to serve an amended complaint, unanimously affirmed, with costs.

A request to amend a pleading, regardless of the statutory imperative that it be freely granted (CPLR 3025 [b]), requires an examination of the underlying merit to determine if there is evidentiary proof that could be considered on a motion for summary judgment (Nab-Tern Constructors v City of New York, 123 AD2d 571, 572 [1986]). Affirmance is warranted here because there is no showing of merit to the amended pleadings. None of the proposed additional parties was a signatory to the original contract; the fraud claim is simply a recast breach-of-contract claim; and the civil-conspiracy-to-commit-fraud claim fails because of the lack of viability for the fraud claim. Concur—Tom, J.P., Saxe, Friedman, Williams and Buckley, JJ.