Weingarten v S & R Medallion Corp.

Weingarten v S & R Medallion Corp. 2011 NY Slip Op 06655 Decided on September 29, 2011 Appellate Division, First Department 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.

Decided on September 29, 2011
Tom, J.P., Catterson, Renwick, Freedman, Manzanet-Daniels, JJ.
5609N 102230/08

[*1]Victor Weingarten, Plaintiff-Appellant,

v

S & R Medallion Corp., et al., Defendants-Respondents, David Beier, Defendant.



 
Cobert, Haber & Haber, Garden City (Eugene F. Haber of
counsel), for appellant.
Evan L. Gordon, New York, for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 19, 2010, which, in this breach of contract action, denied plaintiff's motion to amend the complaint, unanimously affirmed, without costs.

The court providently exercised its discretion in denying plaintiff's motion. The proposed allegation of a "tacit" modification of the parties' written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proven at trial and, if necessary, the pleadings can be amended to conform to the proof.

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

ENTERED: SEPTEMBER 29, 2011

CLERK