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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: January 1, 2016

Motion to Amend Denied Where Plaintiff Fails to Establish Merit

On December 21, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Barry v. Clermont York Associates LLC, 2015 NY Slip Op. 51861(U), denying a motion to amend, explaining:

It is well settled that this court has discretion to deny leave to amend when the proposed amendment is palpably devoid of merit or would cause undue prejudice to defendant. While 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, 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. The court, therefore, is not required to accept a plaintiff’s allegations as true on a motion to amend.

For the reasons stated above, [the plaintiff’s] claims have no merit. If they were meritorious, [the plaintiff] would have proffered proof by now.

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

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