Shellberry v. Albright

—Order unanimously reversed on the law without costs, motion granted, complaint against defendant Edwin J. Shoemaker dismissed and cross motion denied. Memorandum: Plaintiff commenced this action to recover funds that she alleged were improperly channeled through the attorney trust account of defendant Edwin J. Shoemaker. In December 1996 plaintiff first asserted causes of action against Shoemaker and defendant Mary C. Albright, individually and as executrix of the Estate of Robert A. Al-bright. We affirmed an order denying the motion of Shoemaker for summary judgment dismissing the complaint against him, with leave to renew upon the completion of discovery (Shellberry v Albright, 262 AD2d 942). After further discovery, Shoemaker renewed his motion for summary judgment and plaintiff cross-moved to amend the complaint. Supreme Court erred in denying the motion and in granting the cross motion. With respect to the cross motion, although leave to amend should be 893 freely granted (see, CPLR 3025 [b]), leave should not be granted where, as here, the amendment lacks merit (see, Shapiro v McNeill, 92 NY2d 91; see generally, Nicholas J. Masterpol, Inc. v Travelers Ins. Cos., 273 AD2d 817). With respect to the motion, Shoemaker met his initial burden by establishing that he owed no duty to plaintiff, and plaintiff failed to raise an issue of fact (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeals from Order of Supreme Court, Niagara County, Joslin, J. — Summary Judgment.) Present — Wisner, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.