Opinion
3306N.
Decided April 1, 2004.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 12, 2003, which, to the extent appealed from, denied defendant's motion to amend its answer, unanimously affirmed, with costs.
Jeffrey G. Stark, for Plaintiff-Respondent.
Bradley F. Silverman, for Defendant-Appellant.
Before: Mazzarelli, J.P., Andrias, Sullivan, Friedman, Marlow, JJ.
Plaintiff landlord demands rent and other damages for the alleged breach of the parties' lease agreement. The court properly exercised its discretion in denying defendant tenant's belated motion to amend its answer to assert a defense that plaintiff had unreasonably withheld its consent to subletting the premises. Although permission to amend should ordinarily be freely granted (CPLR 3025[b]), the movant must make some evidentiary showing that the proposed amendment has arguable merit ( Morgan v. Prospect Park Assoc. Holdings, 251 A.D.2d 306). The record herein is devoid of evidence that defendant ever expressed interest in subletting the premises, let alone sought plaintiff's permission to do so.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.