SHARON AVA COMPANY INC v. OLYMPIC TOWER ASSOCIATES (1999)

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered August 10, 1998, dismissing the complaint, and bringing up for review an order, same court and Justice, entered July 8, 1998, which granted defendants' motion for summary judgment, and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.   Appeal from said order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

 The IAS court correctly determined that plaintiff was not licensed either at the time of the activities that purportedly generated the right to a commission or at the time the lease transaction was consummated and that plaintiff was, accordingly, barred, pursuant to Real Property Law § 442-d, from commencing the instant action to recover a commission for having brokered the lease transaction (see, Galbreath-Ruffin Corp. v. 40th & 3rd Corp., 19 N.Y.2d 354, 362-363, 280 N.Y.S.2d 126, 227 N.E.2d 30).   The fact that plaintiff company's president, Sharon Satlin-Shahar, was a licensed broker at the time of the transaction does not save the cause of action on behalf of the corporation (see, Hudson Michael Realty Inc. v. Oliner, 184 A.D.2d 929, 585 N.Y.S.2d 127;  Philip Mehler Realty, Inc. v. Kayser, 176 A.D.2d 104, 574 N.Y.S.2d 1, lv. dismissed 79 N.Y.2d 977, 583 N.Y.S.2d 195, 592 N.E.2d 803;  Rogovin v. Bach Realty, Inc., 147 A.D.2d 364, 537 N.Y.S.2d 528).   Nor was the court's denial of plaintiff's cross motion to amend the complaint to substitute Ms. Satlin-Shahar as plaintiff in error.   While amendment of a pleading should ordinarily be freely granted (CPLR 3025[b] ), it may be denied where the proposed amended cause is plainly lacking in merit (see Daniels v. Empire-Orr, Inc., 151 A.D.2d 370, 542 N.Y.S.2d 614).   Here, the proposed amendment would not have rendered the cause for a commission viable, for although Ms. Satlin-Shahar was plaintiff's president and, at least purportedly, its alter ego, the record clearly demonstrates that she was not the procuring cause of the lease.

MEMORANDUM DECISION.