Sharon Ava & Co. v. Olympic Tower Associates

Mar 11, 1999
Versions:259 A.D.2d 315
686 N.Y.S.2d 422
1999 N.Y. App. Div. LEXIS 2422

Judg*316ment, Supreme Court, New York County (Ira Gammerman, J.), entered August 10, 1998, dismissing the complaint, and bringing up for review an order, same court and Justice, entered July 8, 1998, which granted defendants’ motion for summary judgment, and denied plaintiffs cross motion to amend the complaint, unanimously affirmed, without costs. Appeal from said order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

The IAS Court correctly determined that plaintiff was not licensed either at the time of the activities that purportedly generated the right to a commission or at the time the lease transaction was consummated and that plaintiff was, accordingly, barred, pursuant to Real Property Law § 442-d, from commencing the instant action to recover a commission for having brokered the lease transaction (see, Galbreath-Ruffin Corp. v 40th & 3rd Corp., 19 NY2d 354, 362-363). The fact that plaintiff company’s president, Sharon Satlin-Shahar, was a licensed broker at the time of the transaction does not save the cause of action on behalf of the corporation (see, Hudson Michael Realty v Oliner, 184 AD2d 929; Philip Mehler Realty v Kayser, 176 AD2d 104, lv dismissed 79 NY2d 977; Rogovin v Bach Realty, 147 AD2d 364). Nor was the court’s denial of plaintiffs cross motion to amend the complaint to substitute Ms. Satlin-Shahar as plaintiff in error. While amendment of a pleading should ordinarily be freely granted (CPLR 3025 [b]), it may be denied where the proposed amended cause is plainly lacking in merit (see Daniels v Empire-Orr, Inc., 151 AD2d 370). Here, the proposed amendment would not have rendered the cause for a commission viable, for although Ms. Satlin-Shahar was plaintiffs president and, at least purportedly, its alter ego, the record clearly demonstrates that she was not the procuring cause of the lease. Concur — Ellerin, P. J., Rubin, Mazzarelli and Saxe, JJ.