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

[*1] Sleepy's, Inc. v Best Global Alternative, Ltd 2014 NY Slip Op 50118(U) Decided on January 27, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 27, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, J.P., NICOLAI and LaSALLE, JJ
2012-221 N C.

Sleepy's, Inc., Respondent,

against

Best Global Alternative, Ltd. and MARSHALL SHAW, Appellants.

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 AD3d 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 AD3d 264 [2007]; Carter v Howland Hook Hous. Co., Inc., 19 AD3d 146 [2005]; compare Baralan Intl. v Vetrerie Bormioli Ing. Luigi, 215 AD2d 338 [1995]; Brockman v Turin, 130 AD2d 616 [1987]).

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

Marano, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: January 27, 2014