PAUL RYAN PLAINTIFF APPELLANT v. SUSAN CUNNINGHAM ALAN LINCOLN NANCY KERRIGAN CHARLIE BERNET KRISTA TASKEY DIANA MARLEY DAVID SMART HUNTWOOD HOMEOWNER ASSOCIATION PROPERTY MANAGEMENT ALLIANCE LLC MURRAY LANDSCAPING LLC AND TOWN OF MANLIUS DEFENDANTS RESPONDENTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, removal of a wall that was erected adjacent to a back deck by his adjoining townhome neighbor. Plaintiff asserted causes of action for, among other things, private nuisance and construction of a party wall in violation of the applicable building code. Plaintiff appeals from an order that, inter alia, denied his motions seeking various relief. We affirm.

We reject plaintiff's contention that Supreme Court erred in denying his motion seeking leave to serve a second amended complaint adding defendant Murray Landscaping LLC to his third cause of action. “Although leave to amend a pleading should be freely granted (see CPLR 3025 [b]), it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit” (Christian v Brookdale Senior Living Communities, Inc., 199 AD3d 1450, 1451 [4th Dept 2021] [internal quotation marks omitted]; see English v Brady, 244 AD3d 1739, 1739-1740 [4th Dept 2025], lv dismissed 45 NY3d 961 [2026]; Cicero v O’Rourke, 211 AD3d 1463, 1464 [4th Dept 2022], amended on rearg 221 AD3d 1602 [4th Dept 2023]). The decision to permit an amendment is within the sound discretion of the court (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

We conclude that the court did not abuse its discretion in denying the motion because the proposed amendment was patently lacking in merit. Plaintiff's third cause of action in his amended complaint is for “unlawful building of a party wall (NY Building Code 706.1.1).” Although evidence of a Building Code violation constitutes some evidence of negligence (see Elliott v City of New York, 95 NY2d 730, 734-735 [2001]; Hartnett v Zuchowski, 175 AD3d 1831, 1832 [4th Dept 2019]), the Building Code itself does not create a private right of action (see WMC Realty Corp. v City of Yonkers, 193 AD3d 1018, 1019-1020 [2d Dept 2021]). Plaintiff's allegations in the third cause of action in the proposed second amended complaint do not state a cognizable cause of action against Murray Landscaping LLC.

Plaintiff next contends that the court erred in denying his motion seeking a default judgment against defendant David Smart. A plaintiff may establish entitlement to a default judgment by submitting “proof of service of the summons and the complaint, the facts constituting the claim, and ․ defendant's default” (Diederich v Wetzel, 112 AD3d 883, 883 [2d Dept 2013]; see CPLR 3215 [f]; PNC Bank, N.A. v Harmonson, 154 AD3d 1347, 1348 [4th Dept 2017]). Here, in moving for a default judgment, plaintiff relied on his original complaint rather than the amended complaint, which was the operative pleading at the time (see Hamill v Hamill, 218 AD3d 1371, 1372 [4th Dept 2023]). Moreover, plaintiff failed to set forth the facts constituting the claim inasmuch as the complaint and amended complaint were unverified and there was no affidavit submitted in support of the motion setting forth the facts constituting the claim (see CPLR 3215 [f]; Natemeier v Heim, 81 AD2d 1008, 1008 [4th Dept 1981]).

We reject plaintiff's further contention that the court's directive prohibiting him from filing further motions without prior permission of the court was excessively punitive and unsupported. “Although [p]ublic policy mandates free access to the courts ․, a party may forfeit that right if [they] abuse[ ] the judicial process by engaging in meritless litigation motivated by spite or ill will” (Fraccola v 1st Choice Realty, Inc., 206 AD3d 1649, 1650 [4th Dept 2022], appeal dismissed 38 NY3d 1155 [2022] [internal quotation marks omitted]). “[I]n an appropriate case, a court may preclude a party from filing new petitions [or motions] without permission of the court where the record establishes that the party has abused the judicial process by engaging in meritless, frivolous or vexatious litigation” (Carney v Carney, 160 AD3d 218, 228 [4th Dept 2018]; see Miller v Lanzisera, 273 AD2d 868, 868-869 [4th Dept 2000], appeal dismissed 95 NY2d 887 [2000], reconsideration denied 96 NY2d 731 [2001]). Here, plaintiff has clearly abused the judicial process by filing over 20 motions before discovery had even begun, and thus the court properly enjoined him from filing new motions without prior permission.

We have considered plaintiff's remaining contentions and conclude that none warrants modification or reversal of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court