| Uadi, Inc. v Stern |
| 2009 NY Slip Op 08608 [67 AD3d 899] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Uadi, Inc., Appellant, v Sam Stern et al.,Respondents. |
—[*1]
In an action to recover damages for tortious interference with a real estate contract, and forspecific performance of that contract, the plaintiff appeals from so much of an order of theSupreme Court, Kings County (Ambrosio, J.), dated June 2, 2008, as granted those branches ofthe cross motion of the defendants Sam Stern and Ari Kirschenbaum which were for summaryjudgment dismissing the complaint insofar as asserted against Sam Stern and pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against Ari Kirschenbaum for lack ofpersonal jurisdiction, and denied that branch of its cross motion which was for leave to amendthe complaint.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly granted that branch of the cross motion of the defendants SamStern and Ari Kirschenbaum (hereinafter together the defendants) which was for summaryjudgment dismissing the complaint insofar as asserted against Stern.
The defendants sustained their prima facie burden by offering sufficient evidentiary proof todemonstrate the absence of any triable issue of fact with respect to the plaintiff's claims againstStern, including the claim for specific performance of a real estate contract (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York,49 NY2d 557 [1980]). In opposition, the plaintiff failed to raise a triable issue of fact.
The court also properly granted that branch of the defendants' cross motion which was todismiss the complaint insofar as asserted against Kirschenbaum for lack of personal jurisdictionbecause the plaintiff failed to serve him in accordance with the requirement of CPLR 308 (2) (see Munoz v Reyes, 40 AD3d1059 [2007]; Welch v State of New York, 261 AD2d 537, 538 [1999]).
Regarding that branch of the plaintiff's cross motion which was for leave to amend itscomplaint, leave to amend should be freely given provided that the amendment is not palpablyinsufficient, does not prejudice or surprise, and is patently devoid of merit (see Kinzer v Bederman, 59 AD3d496, 497 [2009]; Sheila Props., Inc.v A Real Good Plumber, Inc., 59 AD3d 424, 426 [2009]). The Supreme Courtprovidently exercised its discretion in denying that branch of the plaintiff's cross motion, sincethe proposed amendments were patently devoid of merit on their face (see Rudden v Bernstein, 61 AD3d736, 739 [2009]; [*2]Scofield v DeGroodt, 54 AD3d 1017, 1018 [2008]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Angiolillo, Eng andLott, JJ., concur.