Lang v. Dachs

—In an action, inter alia, to recover a down payment in connection with the sale of real property, the defendant appeals (1), as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated November 30, 2001, as granted the plaintiffs motion for leave to amend the complaint to add a cause of action for specific performance, and (2) from so much of an order of the same court, entered March 21, 2002, as denied his cross motion, in effect, for summary judgment dismissing the cause of action for specific performance. Ordered that the order dated November 30, 2001, is reversed insofar as appealed from, on the law, and the motion for leave to amend the complaint to add a cause of action for specific performance is denied; and it is further, Ordered that the appeal from the order entered March 21, 2002, is dismissed as academic; and it is further, Ordered that one bill of costs is awarded to the defendant. Although leave to amend a pleading should generally be liberally granted (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Staines v Nassau Queens Med. Group, 176 AD2d 718 [1991]), if the proposed amendment is patently lacking in merit or its lack of merit is clear and free from doubt, it will not be permitted and leave should be denied as a matter of law (see McKiernan v McKiernan, 207 AD2d 825 [1994]; Staines v Nassau Queens Med. Group, supra). In the instant case, there was no evidence in the record, at the time that the motion was decided, indicating that the plaintiff was ready, willing, and able to close on the law date. In fact, the evidence was to the contrary. Accordingly, the Supreme Court erred in granting the motion for leave to amend the complaint to add a cause of action for specific performance (see Posner v Central Synagogue, 202 AD2d 284 [1994]; Public Improvements v Parker Constr. Corp., 59 AD2d 671 [1977]). Santucci, J.P., Smith, H. Miller and Adams, JJ., concur.