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Supreme Court, Appellate Division, First Department, New York.

Kalman YEGER, et al., Plaintiffs-Appellants, v. E*TRADE SECURITIES LLC, Defendant-Respondent.

Decided: June 26, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Sanford Wittels & Heisler, LLP, New York (William R. Weinstein of counsel), for appellants. Arnold & Porter LLP, New York (H. Peter Haveles, Jr. of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered February 28, 2007, which denied plaintiffs' motion to amend the complaint, unanimously affirmed, with costs.

Plaintiffs failed to show merit to their proposed amendment, which would have added a new theory of recovery (Glenn Partition v. Trustees of Columbia Univ. in City of N.Y., 169 A.D.2d 488, 564 N.Y.S.2d 361 [1991] ), and further offered no valid reason for their delay in proposing it, even though they knew about its basis in 2001.

The de minimis nature of the alleged damages for the proposed claim does not impact on its merit (see Weinberg v. Hertz Corp., 116 A.D.2d 1, 499 N.Y.S.2d 693 [1986], affd. 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 [1987] ), but plaintiffs were refunded the account fees they had contested.   Accordingly, the motion court providently determined, in its discretion, that they would not be proper class representatives for the proposed claim, and the theory sought to be added would not be appropriate for class-action treatment.

The court also properly disallowed plaintiffs' effort to restore a cause of action based on General Business Law § 349, which it had previously dismissed.

We have considered plaintiffs' remaining contentions and find them unavailing.