Opinion
April 26, 1999
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the appeal from so much of the order as denied that branch of the plaintiffs' motion which was for reargument is dismissed, as no appeal lies from an order denying reargument; and it is farther,
Ordered that the order is affirmed insofar as reviewed; and it is farther,
Ordered that the defendants are awarded one bill of costs.
The facts and procedural history of this case dating from 1989 through 1995 are set forth in Duffy v. Wetzler ( 148 Misc.2d 459, affd as mod 174 A.D.2d 253, lv denied 80 N.Y.2d 890, after remand cert denied 513 U.S. 1103), and will not be repeated here.
While appeals in Duffy v. Wetzler ( 148 Misc.2d 459, supra) (hereinafter Duffy) were pending, the attorneys for the Duffy plaintiffs commenced a nearly identical action in the Supreme Court, New York County, known as Alderman v. Wetzler (hereinafter Alderman). Pursuant to a so-ordered stipulation dated June 28, 1995, Duffy and Alderman were consolidated for all purposes in the Supreme Court, Queens County. In March 1997 the defendants moved pursuant to CPLR 3211 (a) (5) to dismiss the consolidated action on the grounds of res judicata, collateral estoppel, and payment. The plaintiffs cross-moved, inter alia, for leave to amend the complaint and, in effect, for leave to reargue a prior motion for class certification.
The Supreme Court properly denied that branch of the plaintiffs' cross motion which was for leave to amend the complaint by adding several factual allegations and two new causes of action. Although leave to amend a pleading should be freely given ( see, CPLR 3025 [b]), leave is properly denied where, as here, the proposed amendments are devoid of merit and are legally insufficient ( see, Matter of Consolidated Edison Co. [Neptune Assocs.], 143 A.D.2d 1012, 1014; Norman v. Ferrara, 107 A.D.2d 739, 740), and where, in addition, there has been an extensive and unexplained delay in making the motion ( see, Beuschel v. Malm, 114 A.D.2d 569; Smith v. Sarkisian, 63 A.D.2d 780, 781, affd 47 N.Y.2d 878).
That branch of the plaintiffs' motion which was denominated as one for leave to renew or reargue a prior motion for class certification was not based on new facts which were unavailable at the time of the original motion, and therefore the motion was actually one to reargue, the denial of which is not appealable ( see, Marine Midland Bank v. Freedom Rd. Realty Assocs., 203 A.D.2d 538, 539; Matter of Kadish v. Colombo, 121 A.D.2d 722).
The Supreme Court properly dismissed the complaint on the ground of payment. The plaintiffs' conclusory allegations that the defendants failed to pay full refunds plus interest to all Federal retirees who filed timely refund claims are unsupported by the record. To the extent that the plaintiffs continue to seek refunds for late or unfiled claims, it should be noted that such a cause of action is personal to the taxpayer and that only those who filed an appropriate protest may obtain a tax refund ( see, Gandolfi v. City of Yonkers, 101 A.D.2d 188, 198-199, affd 62 N.Y.2d 995). The commencement of a class action, purportedly on behalf of all similarly-situated taxpayers, is not a sufficient indication of protest by each proposed member of the class ( see, Conklin v. Town of Southampton, 141 A.D.2d 596, 598-599).
The plaintiffs' remaining contentions are without merit.
O'Brien, J. P., Thompson, Krausman and Luciano, JJ., concur.
[ See, 175 Misc.2d 231.]