| American Theatre for the Performing Arts, Inc. v Consolidated CreditCorp. |
| 2007 NY Slip Op 09523 [45 AD3d 506] |
| November 29, 2007 |
| Appellate Division, First Department |
| American Theatre for the Performing Arts, Inc.,Appellant, v Consolidated Credit Corporation et al.,Respondents. |
—[*1] Seyfarth Shaw LLP, New York City (David M. Monachino of counsel), for ConsolidatedCredit Corporation, The Moinian Group and Joseph Moinian, respondents. Epstein Becker & Green, P.C., New York City (Ralph Berman of counsel), for The JackParker Corporation, respondent. Marcus Attorneys, Brooklyn (Andrew Morris Weltchek of counsel), for Manhattan TheatreClub, 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 forrenewal of a prior order that had denied leave to serve an amended complaint, unanimouslyaffirmed, 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 isevidentiary proof that could be considered on a motion for summary judgment (Nab-TernConstructors v City of New York, 123 AD2d 571, 572 [1986]). Affirmance is warranted herebecause there is no showing of merit to the amended pleadings. None of the proposed additionalparties was a signatory to the original contract; the fraud claim is [*2]simply a recast breach-of-contract claim; and thecivil-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.