FARRELL v. CORP (1997)

 Supreme Court properly permitted plaintiff to amend the complaint to state causes of action for breach of contract and unjust enrichment.   The court erred, however, in granting plaintiff leave to amend the complaint to assert causes of action for rescission, fraud and punitive damages.  “It is incumbent upon one seeking leave to amend a pleading to make an evidentiary showing that the claim can be supported” (Sober v. Kalina, 208 A.D.2d 1140, 617 N.Y.S.2d 590;  see, Tenenbaum v. Long Beach Mem. Hosp., 206 A.D.2d 973, 616 N.Y.S.2d 287).  Although plaintiff did not submit an affidavit of merit in support of the motion, the proposed verified complaint supplies the requisite evidentiary support for the proposed causes of action for breach of contract and unjust enrichment (see, CPLR 105[u];  Salch v. Paratore, 60 N.Y.2d 851, 852-853, 470 N.Y.S.2d 138, 458 N.E.2d 379, rearg. denied 61 N.Y.2d 759, 472 N.Y.S.2d 1028, 460 N.E.2d 1362).   Furthermore, “[m]ere lateness is not a barrier to the amendment” (Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3025:5, at 356), and defendant failed to show prejudice.   Plaintiff, however, has provided no evidentiary support for the allegations of fraud underlying the causes of action for rescission and fraud.   There are references in an attorney's affidavit to an expert's report and the allegedly corroborative testimony of a former employee of defendant, but there is no affidavit from either individual.   There is no separate cause of action for punitive damages (see, Anderson v. WHEC-TV [appeal No. 2], 92 A.D.2d 747, 748, 461 N.Y.S.2d 607).

We further conclude that the court properly denied the cross motion of defendant for partial summary judgment on its counterclaim (see, Burgess Steel Prods. Corp. v. Modern Telecommunications, 205 A.D.2d 344, 346, 613 N.Y.S.2d 158).   We modify the order, therefore, by denying that part of plaintiff's motion seeking leave to amend the complaint to assert causes of action for rescission, fraud and punitive damages.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: