Barry v. Clermont York Assocs. LLC

Citation144 A.D.3d 607,42 N.Y.S.3d 123,2016 N.Y. Slip Op. 08017
Parties Stanley BARRY, Plaintiff–Appellant, v. CLERMONT YORK ASSOCIATES LLC, et al., Defendants–Respondents.
Decision Date29 November 2016
CourtNew York Supreme Court Appellate Division

144 A.D.3d 607
42 N.Y.S.3d 123
2016 N.Y. Slip Op. 08017

Stanley BARRY, Plaintiff–Appellant,
v.
CLERMONT YORK ASSOCIATES LLC, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Nov. 29, 2016.


42 N.Y.S.3d 123

Manatt, Phelps & Phillips, LLP, New York (Andrew L. Morrison of counsel), for appellant.

Weil, Gotshal & Manges LLP, New York (Joseph S. Allerhand of counsel), for respondents.

FRIEDMAN, J.P., SWEENY, SAXE, KAPNICK, GESMER, JJ.

144 A.D.3d 608

Orders, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 22, 2015, which denied plaintiff's motion for leave to amend the complaint, granted defendants' motion for summary judgment dismissing the complaint, and declared that the protocol governing plaintiff's books and records request set forth in defendant Clermont York Associates LLC's October 2011 letter did not contravene its operating agreement, unanimously modified, on the law, to delete the declaration, and otherwise affirmed, without costs.

The court providently exercised its discretion in denying plaintiff's motion for leave to amend, since the motion was unsupported by evidentiary proof (see e.g.

Bag Bag v. Alcobi, 129 A.D.3d 649, 13 N.Y.S.3d 37 [1st Dept.2015] ). Moreover, plaintiff failed to establish a reasonable excuse for his years-long delay in moving for leave to amend (see e.g. Oil Heat Inst. of Long Is. Ins. Trust v. RMTS Assoc., 4 A.D.3d 290, 293, 772 N.Y.S.2d 313 [1st Dept.2004] ). Finally, some of the proposed causes of action, such as conspiracy to commit fraud, are legally insufficient (see Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d 968, 510 N.Y.S.2d 546, 503 N.E.2d 102 [1986] ).

Since the court properly denied plaintiff's motion for leave to amend, the operative declaratory judgment claim is the original one. The original first cause of action did not seek a...

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