Tilden Financial Corp. v. Muffoletto
| Decision Date | 07 May 1990 |
| Parties | TILDEN FINANCIAL CORP., Respondent, v. Richard MUFFOLETTO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Levine & Robinson, P.C., Mitchel Field (Carl S. Levine and Joel H. Joseph, of counsel), for appellant.
Steinberg, Daniels & Lasky, Garden City (Barry M. Lasky and Scott L. Steinberg, of counsel), for respondent.
Before THOMPSON, J.P., and BRACKEN, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on a guarantee, the defendant appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated September 8, 1988, which denied his motion to vacate the note of issue, for leave to amend his answer, and to direct the plaintiff to serve an amended complaint.
ORDERED that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in denying the defendant's motion to strike the action from the trial calendar (see, 22 NYCRR 202.21[e]. Although a stay of discovery was in effect during the pendency of the plaintiff's motion for summary judgment (see, CPLR 3214[b], there was nevertheless ample time within which the defendant could have made requests for discovery. However, no such requests were made, or at least no reference to such demands appear in the present record. Since no formal discovery requests were pending, the plaintiff did not act improperly in filing his note of issue. We also note that the Supreme Court granted the parties leave to conduct discovery, by way of mutual depositions, even while the action remains on the trial calendar.
The Supreme Court did not err in denying the defendant's motion insofar as it was for an order granting leave to amend his answer so as to assert an additional affirmative defense based on certain provisions of Uniform Commercial Code article 9. The general rule is that motions for leave to amend must be supported by at least a minimal showing of merit (see, CPLR 3025[b]; March v. St. Volodymyr Ukranian Catholic Church, 117 A.D.2d 864, 498 N.Y.S.2d 578; Beekman v. Sylvan Lawrence, Inc., 111 A.D.2d 658, 659, 490 N.Y.S.2d 216; Anos Diner v. Pitios Gourmet, 100 A.D.2d 948, 475 N.Y.S.2d 86; Brennan v. City of New York, 99 A.D.2d 445, 470 N.Y.S.2d 621; Saxon v. Tung Foon Ong, 87 A.D.2d 867, 449 N.Y.S.2d 307; McDermott v. Village of Menands, 74 A.D.2d 661, 424 N.Y.S.2d 776; Walden v. Nowinski, 63 A.D.2d 586, 587, 404 N.Y.S.2d 635; Leonard Hosp. v. Messier, 32 A.D.2d 596, 299 N.Y.S.2d 360; 3...
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