Marcus & Co. v. Pescitelli

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated July 16, 2007, which denied that branch of its motion which was for leave to renew its opposition to the prior cross motion of the defendant John Pescitelli for summary judgment dismissing the complaint insofar as asserted against him, which, in effect, had been granted in an order of the same court dated June 28, 2006, and denied that branch of its motion which was for leave to amend the complaint pursuant to CPLR 3025. Ordered that the order is affirmed, with costs. Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was for leave to renew its opposition to the prior cross motion of the defendant John Pescitelli for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff failed to establish that there was a reasonable justification for not including the “new” facts in opposition to the prior cross motion (see CPLR 2221 [e] [2], [3]; Clemente v Carl Bongiorno & Sons, Inc., 39 AD3d 688, 689 [2007]; Walsh v Schmigelski, 35 AD3d 849 [2006]; Elder v Elder, 21 AD3d 1055 [2005]). In addition, the court providently exercised its discretion in denying that branch of the plaintiffs motion which was for leave to amend the complaint at this late stage of the proceedings, as the proposed amendment was “patently devoid of merit” (Trataros Constr, Inc. v New York City Hous. Auth., 34 AD3d 451, 453 [2006]; see Lucido v Mancuso, 49 AD3d 220 [2008]; Polizzi v Profaci, 5 AD3d 456, 458 [2004]; Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004]; Mc-Kiernan v McKiernan, 207 AD2d 825 [1994]). Prudenti, P.J., Lifson, Covello and Balkin, JJ., concur.