RBP of 400 W42 St., Inc. v. 400 West 42nd Street Realty Associates

Full title: RBP OF 400 W42 ST., INC., Appellant, v. 400 WEST 42ND STREET REALTY…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 7, 2006

27 A.D.3d 250 (N.Y. App. Div. 2006)

2006 N.Y. Slip Op. 1562

809 N.Y.S.2d 909

Opinion

8029N.

March 7, 2006.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered May 13, 2005, which denied plaintiff's motion for leave to file an amended complaint, unanimously affirmed, with costs.

Noel W. Hauser and Associates, New York (Noel W. Hauser of counsel), for appellant.

Richard L. Koral, New York, for respondent.

Before: Tom, J.P., Friedman, Nardelli, Williams and Sweeny, JJ., concur.

Plaintiff tenant sought to add claims already rendered meritless by the court's previous and undisturbed finding that defendant landlord had not acted in bad faith in refusing to consent to a proposed assignment of the lease and invoking the provisions for its recapture. Although leave to amend pleadings should be freely granted absent prejudice or surprise resulting from delay (CPLR 3025 [b]), leave should be denied where, as here, the proposed claim is palpably insufficient ( Bencivenga Co. v. Phyfe, 210 AD2d 22).