| Tornheim v Blue & White Food Prods. Corp. |
| 2008 NY Slip Op 09384 [56 AD3d 761] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Uri Tornheim, Appellant, v Blue & White Food ProductsCorp., Respondent. |
—[*1] Littler Mendelsohn, P.C., New York, N.Y. (Joseph E. Field of counsel), and SheppardMullin Richter & Hampton, LLP, New York, N.Y. (Susan G. Rosenthal and ElizabethRothenberg-Schwartz of counsel), for respondent (one brief filed).
In an action, inter alia, for a judgment declaring that the plaintiff is the beneficial owner of20% of the shares of the stock in the defendant, Blue & White Food Products Corp., and torecover damages for breach of contract, the plaintiff appeals, as limited by his brief, from somuch of an order of the Supreme Court, Rockland County (Nelson, J.), dated March 18, 2008, asdenied that branch of his motion pursuant to CPLR 3025 (b) which was for leave to amend thecomplaint to add a sixth cause of action to recover damages for conversion.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to amend the complaint to add a sixth cause of action torecover damages for conversion. A motion for leave to amend a pleading will be freely granted,unless the amendment is palpably insufficient or patently devoid of merit (see Lucido vMancuso, 49 AD3d 220 [2008]).
The plaintiff's claim that the defendant exercised unauthorized dominion and control over hismachinery and equipment to the exclusion of his rights is palpably insufficient to state a cause ofaction (see [*2]Smith-Hoy v AMC Prop. Evaluations, Inc.,52 AD3d 809 [2008]), since it did not allege that a demand was made for the return of themachinery and equipment, and that the defendant refused to return it or disposed of themachinery and equipment (see Matter of White v City of Mount Vernon, 221 AD2d 345,346 [1995]; Bernstein v La Rue, 120 AD2d 476, 477 [1986]; Johnson v Gumer,94 AD2d 955 [1983]; Apex Ribbon Co. v Knitwear Supplies, 22 AD2d 766, 767[1964]). Furthermore, the plaintiff's claim that the defendant exercised unauthorized dominionand control over his purported interest in the defendant's business merely restates his cause ofaction to recover damages for breach of contract and did not allege a separate taking (seeHochman v LaRea, 14 AD3d 653, 655 [2005]; Hassett-Belfer Senior Hous. v Town of N.Hempstead, 270 AD2d 306, 307 [2000]; Wolf v National Council of Young Israel,264 AD2d 416, 417 [1999]; Priolo Communications v MCI Telecom. Corp., 248AD2d 453, 454 [1998]). Since the insufficiency and lack of merit of the plaintiff's proposedamendment are clear and free from doubt, the plaintiff's motion was properly denied (seeScofield v DeGroodt, 54 AD3d 1017 [2008]).
The plaintiff's remaining contention was not raised before the Supreme Court and, therefore,is not properly before us. Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ., concur.