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Current Developments in the Commercial Divisions of the
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Posted: August 27, 2016

Motion to Amend Denied for Failure to Show or Explain and Justify Changes

On August 17, 2016, Justice Sherwood of the New York County Commercial Division issued a decision in E&B Giftware, LLC v Mauer, 2016 NY Slip Op. 31569(U), denying a motion to amend, explaining:

In order to conserve judicial resources, examination of the underlying merit of the proposed amendment is mandated. Leave will be denied where the proposed pleading fails to state a cause of action, or is palpably insufficient as a matter of law. Thus, a motion for leave to amend a pleading must be supported by an affidavit of merit or other evidentiary proof. . . .

CPLR 3025(b) requires a motion to amend to be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. Plaintiffs attach a copy of their Proposed Second Amended Complaint, but do not show the proposed changes in their moving papers. Plaintiffs attach a blackline to their reply papers, but this does not cure the defect. While Plaintiffs argue that this court allowed such a cure in Sher v. CMJ Holdings Corp., Scher had submitted an affirmation explaining the proposed changes to the complaint, fulfilling the statutory requirement and eliminating prejudice to the defendants. Such is not the case here. The affirmation provided by plaintiffs merely presented the PSAC without explanation. It speaks neither to the proposed changes not to their merits.

(Internal quotations and citations omitted).

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