Farrell v. K.J.D.E. Corp.

Nov 19, 1997
Versions:244 A.D.2d 905
665 N.Y.S.2d 201
1997 N.Y. App. Div. LEXIS 12257

—Order unanimously modified on the law and as modified affirmed without costs in accordance with following Memorandum: Supreme Court properly permitted plaintiff to amend the complaint to state causes of action for breach of contract and unjust enrichment. The court erred, however, in granting plaintiff leave to amend the complaint to assert causes of action for rescission, fraud and punitive damages. “It is incumbent upon one seeking leave to amend a pleading to make an evidentiary showing that the claim can be supported” (Sober v Kalina, 208 AD2d 1140; see, Tenenbaum v Long Beach Mem. Hosp., 206 AD2d 973). Although plaintiff did not submit an affidavit of merit in support of the motion, the proposed verified complaint supplies the requisite evidentiary support for the proposed causes of action for breach of contract and unjust enrichment (see, CPLR 105 [u]; Saleh v Paratore, 60 NY2d 851, 852-853, rearg denied 61 NY2d 759). Furthermore, “[m]ere lateness is not a barrier to the amendment” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:5, at 356), and defendant failed to show prejudice. Plaintiff, however, has provided no evidentiary support for the allegations of fraud underlying the causes of action for rescission and fraud. There are references in an attorney’s affidavit to an expert’s report and the allegedly corroborative testimony of a former employee of defendant, but there is no affidavit from either individual. There is no separate cause of action for punitive damages (see, Anderson v WHEC-TV [appeal No. 2], 92 AD2d 747, 748).

We further conclude that the court properly denied the cross motion of defendant for partial summary judgment on its counterclaim (see, Burgess Steel Prods. Corp. v Modern Telecommunications, 205 AD2d 344, 346). We modify the or der, therefore, by denying that part of plaintiffs motion seeking leave to amend the complaint to assert causes of action for rescission, fraud and punitive damages. (Appeal from Order of Supreme Court, Onondaga County, Tormey, J.—Amended Complaint.) Present—Denman, P. J., Pine, Wisner, Balio and Boehm, JJ.