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Current Developments in the Commercial Divisions of the
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Posted: July 22, 2015

In Deciding Motion to Amend, Court Not Required to Accept Allegations As True

On June 30, 2015, the First Department issued a decision in Boaz Bag Bag v. Alcobi, 2015 NY Slip Op. 05618, affirming the denial of a motion to amend to add a new cause of action.

In Boaz Bag Bag, the First Department affirmed the trial court’s denial of the plaintiff’s motion to file an amended complaint, explaining:

It is true that leave to amend a pleading should be freely granted, so long as there is no surprise or prejudice to the opposing party. However, it is equally true that the court should examine the sufficiency of the merits of the proposed amendment. Therefore, a motion for leave to amend a pleading must be supported by an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgment. Contrary to plaintiffs’ contention, the court was not required to accept their allegations as true on a motion to amend.

(Internal quotations and citations omitted) (emphasis added).

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