American Theatre for Performing Arts, Inc. v Consolidated Credit Corp.

American Theatre for the Performing Arts, Inc. v Consolidated Credit Corp. 2007 NY Slip Op 09523 [45 AD3d 506] November 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

American Theatre for the Performing Arts, Inc., Appellant,
v
Consolidated Credit Corporation et al., Respondents.

—[*1] Agulnick & Gogel, LLC, New York City (Peter M. Agulnick of counsel), for appellant.

Seyfarth Shaw LLP, New York City (David M. Monachino of counsel), for Consolidated Credit Corporation, The Moinian Group and Joseph Moinian, respondents.

Epstein Becker & Green, P.C., New York City (Ralph Berman of counsel), for The Jack Parker Corporation, respondent.

Marcus Attorneys, Brooklyn (Andrew Morris Weltchek of counsel), for Manhattan Theatre Club, respondent.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 26, 2006, which, to the extent appealable and as limited by plaintiff's brief, denied plaintiff's motion for renewal of a prior order that had denied leave to serve an amended complaint, unanimously affirmed, with costs.

A request to amend a pleading, regardless of the statutory imperative that it be freely granted (CPLR 3025 [b]), requires an examination of the underlying merit to determine if there is evidentiary proof that could be considered on a motion for summary judgment (Nab-Tern Constructors v City of New York, 123 AD2d 571, 572 [1986]). Affirmance is warranted here because there is no showing of merit to the amended pleadings. None of the proposed additional parties was a signatory to the original contract; the fraud claim is [*2]simply a recast breach-of-contract claim; and the civil-conspiracy-to-commit-fraud claim fails because of the lack of viability for the fraud claim. Concur—Tom, J.P., Saxe, Friedman, Williams and Buckley, JJ.