| Eighth Ave. Garage Corp. v H.K.L. Realty Corp. |
| 2009 NY Slip Op 01523 [60 AD3d 404] |
| March 3, 2009 |
| Appellate Division, First Department |
| Eighth Avenue Garage Corp., Appellant, v H.K.L. RealtyCorp. et al., Defendants, and Lila Scheiner, Respondent. |
—[*1] Lewette Fielding, P.C., New York (Lewette Fielding of counsel), for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered March 7, 2008, which,to the extent appealed from, denied plaintiff's motion to amend its complaint for a second time,unanimously affirmed, with costs.
Leave to amend a pleading is freely given (CPLR 3025 [b]), absent prejudice or surpriseresulting directly from the delay (McCaskey, Davies & Assoc. v New York City Health &Hosps. Corp., 59 NY2d 755 [1983]). The determination of whether to allow such anamendment is reserved for the court's discretion, and exercise of that discretion will not beoverturned without a showing that the facts offered for the amendment do not support the newclaim(s) (Murray v City of New York, 43 NY2d 400 [1977]). Nevertheless, in order toconserve judicial resources, an examination of the underlying merits of the proposed causes ofaction is warranted (Megaris Furs v Gimbel Bros., 172 AD2d 209 [1991]). Where a courtconcludes that an application to amend a pleading clearly lacks merit, leave is properly denied(see Davis & Davis v Morson, 286 AD2d 584, 585 [2001]).
Here, the motion court did not improvidently exercise its discretion in denying leave toamend the complaint for the second time. The causes of action in the proposed amendedcomplaint lack merit; under no set of circumstances could plaintiff have demonstrated either thatdefendant Scheiner breached the lease by not providing an estoppel certificate or that defendantScheiner's failure to deliver an estoppel certificate caused any damage to plaintiff. Similarly,under no set of circumstances could plaintiff have made out a case for tortious interference with[*2]advantageous business relations (see Carvel Corp. v Noonan, 3 NY3d182 [2004]; NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614 [1996]).Concur—Mazzarelli, J.P., Gonzalez, Sweeny, McGuire and DeGrasse, JJ.