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Eighth Avenue Garage Corp. v. H.K.L. Realty Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 3, 2009

EIGHTH AVENUE GARAGE CORP., PLAINTIFF-APPELLANT,
v.
H.K.L. REALTY CORP., ET AL., DEFENDANTS,
LILA SCHEINER, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Louis B. York, J.), entered March 7, 2008, which, to the extent appealed from, denied plaintiff's motion to amend its complaint for a second time, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Gonzalez, Sweeny, McGuire, DeGrasse, JJ.

604472/05

Leave to amend a pleading is freely given (CPLR 3025[b]), absent prejudice or surprise resulting directly from the delay McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]). The determination of whether to allow such an amendment is reserved for the court's discretion, and exercise of that discretion will not be overturned without a showing that the facts offered for the amendment do not support the new claim(s) (Murray v City of New York, 43 NY2d 400 [1977]). Nevertheless, in order to conserve judicial resources, an examination of the underlying merits of the proposed causes of action is warranted (Megaris Furs v Gimbel Bros., 172 AD2d 209 [1991]). Where a court concludes that an application to amend a pleading clearly lacks merit, leave is properly denied (see Davis & Davis v Morson, 286 AD2d 584, 585 [2001]).

Here, the motion court did not improvidently exercise its discretion in denying leave to amend the complaint for the second time. The causes of action in the proposed amended complaint lack merit; under no set of circumstances could plaintiff have demonstrated either that defendant Scheiner breached the lease by not providing an estoppel certificate or that defendant Scheiner's failure to deliver an estoppel certificate caused any damage to plaintiff. Similarly, under no set of circumstances could plaintiff have made out a case for tortious interference with advantageous business relations (see Carvel v Noonan, 3 NY3d 182 [2004]; NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090303

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