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INTERCONTINENTAL PLANNING v. DAYSTROM (05/14/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


May 14, 1968

INTERCONTINENTAL PLANNING, LIMITED, APPELLANT-RESPONDENT,
v.
DAYSTROM, INCORPORATED, ET AL., RESPONDENTS-APPELLANTS

Concur -- Eager, J. P., Steuer, Capozzoli, Tilzer and Rabin, JJ.

Order entered October 3, 1967 unanimously modified on the law and in the exercise of discretion to deny plaintiff's cross motion for leave to serve a second amended complaint, and as so modified affirmed, with $50 costs and disbursements to the defendants-appellants. The two new causes of action which plaintiff was given leave to plead -- for "tortious conspiracy" and for "misrepresentation" -- are nothing but verbal variations of the original causes of action sounding in express contract and quantum meruit dismissed by the order under consideration as barred by the Statute of Frauds. As it would be paradoxical to permit a business finder to recover, despite the absence of a writing, in quantum meruit, so too would it be incongruous and subversive of the legislative intent to permit a plaintiff in a finder's fee case to avoid the Statute of Frauds by relabeling his claims a "conspiracy" and a "misrepresentation". (Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521; Cohon & Co. v. Russell, 29 A.D.2d 221; Personal Property Law, § 31, subd. 10, now General Obligations Law, § 5-701, subd. 10.) Plaintiff's cross-motion, it must be further observed, was made some five years after it served its original complaint and after a count identical with the proposed "conspiracy" cause of action had been dismissed with prejudice on plaintiff's own motion. Quite apart from plaintiff's delay, however, opportunity to serve a second amended complaint should have been denied in the face of the palpably insufficient proposed amendments. (Norton v. Norton, 12 A.D.2d 1003; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3025.15; and see Cushman & Wakefield v. John David, Inc., 25 A.D.2d 133.)

Disposition

Order entered October 3, 1967 unanimously modified on the law and in the exercise of discretion to deny plaintiff's cross motion for leave to serve a second amended complaint, and as so modified affirmed, with $50 costs and disbursements to the defendants-appellants.

19680514

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