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Sleepy's, Inc. v. Best Global Alternative, Ltd.

Supreme Court of New York, Second Department

January 27, 2014

Sleepy's, Inc., Respondent,
v.
Best Global Alternative, Ltd. and MARSHALL SHAW, Appellants.

PRESENT:: MARANO, J.P., NICOLAI and LaSALLE, JJ

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 5, 2011. The order, insofar as appealed from as limited by the brief, upon granting plaintiff's motion to discontinue the action, conditioned the discontinuance upon the payment to defendants of the sum of only $1, 000, and denied the branch of defendants' motion seeking leave to amend their answer to interpose a counterclaim.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

This action, based upon defendants' stopping payment on a check, was commenced by a motion for summary judgment in lieu of a complaint pursuant to CPLR 3213. Defendants cross-moved to have plaintiff's claim dismissed as against defendant Marshall Shaw. Both motions were denied, with no formal pleadings being ordered (see CPLR 3213). After a period during which the case was inactive, defendants moved for various types of relief, including leave to interpose a counterclaim for tortious interference with business relations. Plaintiff subsequently moved to discontinue its action. Defendants opposed plaintiff's motion and asked, in the alternative, that if discontinuance were to be granted, it be conditioned upon plaintiff's payment to defendants of the sum of $4, 000, representing the legal fees defendants had incurred in defending this action. Insofar as is relevant to this appeal, the District Court granted plaintiff's motion to discontinue the action conditioned upon payment of only $1, 000 to defendants, and denied the branch of defendants' motion seeking leave to amend their answer to assert a counterclaim.

In their motion for, among other things, leave to interpose a counterclaim for tortious interference with contract, defendants set forth no facts supporting that claim. Furthermore, defendants did not submit a proposed amended pleading (see CPLR 3025 [b]), nor did they annex or even refer to any other papers that would support or explain their proposed counterclaim. Therefore, we find that the District Court properly denied the branch of defendants' motion seeking to amend their answer to interpose a counterclaim (see Bank of Smithtown v 219 Sagg Main, LLC, 107 A.D.3d 654 [2013]).

We further find that the District Court did not err in conditioning the discontinuance of plaintiff's action upon payment of only $1, 000 to defendants, as there was no showing that plaintiff had acted improperly or that defendants were prejudiced by the motion to discontinue (see Eugenia VI Venture Holdings, Ltd. v MapleWood Equity Partners, L.P., 38 A.D.3d 264 [2007]; Carter v Howland Hook Hous. Co., Inc., 19 A.D.3d 146 [2005]; compare Baralan Intl. v Vetrerie Bormioli Ing. Luigi, 215 A.D.2d 338 [1995]; Brockman v Turin, 130 A.D.2d 616 [1987]).

Accordingly, the order, insofar as appealed from, is affirmed.

Marano, J.P., Nicolai and LaSalle, JJ., concur.ss


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