SEVEN SEVENTEEN CORP v. JP MORGAN CHASE CO

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

SEVEN SEVENTEEN CORP., Plaintiff-Appellant, v. JP MORGAN CHASE & CO., Defendant-Respondent.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, McGUIRE, JJ. Drobenko & Associates, P.C., Astoria (Walter Drobenko of counsel), for appellant. Levi Lubarsky & Feigenbaum LLP, New York (Howard B. Levi of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered August 8, 2005, which granted defendant's motion to dismiss the amended complaint and denied plaintiff's cross motion for leave to amend, unanimously affirmed, with costs.

 Plaintiff's contract cause of action, alleging that amounts were not properly credited to its account with defendant, did not give notice of the transactions complained of and the conduct resulting in the alleged breach (see CPLR 3013).   Although it is clear that the parties' agreements required compliance with plaintiff's instructions (see 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447, 451, 461 N.Y.S.2d 778, 448 N.E.2d 445 [1983] ), the amended complaint failed to set forth the instructions with which defendant failed to comply.   Plaintiff failed to show that any amendment would cure the fatal deficiencies of the amended complaint (see “J. Doe No. 1” v. CBS Broadcasting, Inc., 24 A.D.3d 215, 216, 806 N.Y.S.2d 38 [2005] ), and failed to submit a copy of any proposed amendment (see Fernandez v. HICO Corp., 24 A.D.3d 110, 804 N.Y.S.2d 246 [2005] ).