Sterling Natl. Bank v American Elite Props. Inc.

Sterling Natl. Bank v American Elite Props. Inc. 2012 NY Slip Op 00649 Decided on January 31, 2012 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 January 31, 2012
Tom, J.P., Sweeny, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ. 6654-
101850/10 6655

[*1]Sterling National Bank, Plaintiff-Respondent,

v

American Elite Properties Inc., etc., et al., Defendants-Appellants, Rotot Realty, Inc., et al., Defendants.




Schlam Stone & Dolan LLP, New York (David J. Katz of
counsel), for appellants.
Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow, LLP,
New York (Steven D. Karlin of counsel), for respondent.

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 20, 2011, in an action to recover the balance due under an equipment finance lease, awarding plaintiff the total amount of $101,463.77, and bringing up for review an order, same court and Justice, entered February 18, 2011, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, and denied defendants-appellants' cross motion for leave to serve an amended answer and for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court providently exercised its discretion in denying that portion of the cross motion seeking leave to serve an amended answer, as the proposed amendment to add the affirmative defense of release lacked merit. The release upon which the amended pleading was premised did not pertain to the equipment at issue (see CPLR 3025[b]; 360 W. 11th LLC v ACG Credit Co. II, LLC, ___ AD3d ___, 2011 NY Slip Op 09191 [1st Dept 2011]; Nab-Tern Constructors v City of New York, 123 AD2d 571, 572-573 [1986]; compare Anoun v City of New York, 85 AD3d 694, 695 [2011]).

The general release explicitly references lease schedule number 728-177-101 and only applies to claims preceding the release. The equipment at issue in this action is the equipment pertaining to lease schedule number 728-177-105, which is entirely distinct. Moreover, the lease schedule at issue here was not executed until a year after the general release was executed. [*2]Accordingly, the release cannot, by its own terms, apply to the equipment at issue.

We have considered appellants' remaining contentions and find them unavailing.

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

ENTERED: JANUARY 31, 2012

CLERK