MANHATTAN REAL ESTATE EQUITIES GROUP LLC v. Tali Geva, et al., Defendants.

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

MANHATTAN REAL ESTATE EQUITIES GROUP LLC, Plaintiff-Appellant, v. PINE EQUITY NY, INC., et al., Defendants-Respondents, Tali Geva, et al., Defendants.

Decided: March 21, 2006

TOM, J.P., GONZALEZ, SWEENY, CATTERSON, MALONE, JJ. Starr Associates LLP, New York (Evan R. Schieber of counsel), for appellant. The Brown Law Group, P.C., New York (Ryan J. Whalen of counsel), for Pine Equity NY, Inc., Pine Equity International, LLC, Worldwide Properties LLC, Roy Investment NY Corp., Oxford Capital, LLC, Manhattan Landmark Realty LLC, Oren Yerushalmy and Ofer Resles, respondents. Esther S. Trakinski, New York, for Ben Friedman, respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered April 4, 2005, which denied plaintiff's cross motion for partial summary judgment and leave to amend its complaint, unanimously affirmed, with costs.

 Plaintiff's motion for summary judgment was premature, since issue had not yet been joined (CPLR 3212[a];  Costalas v. Amalfitano, 305 A.D.2d 202, 204, 760 N.Y.S.2d 422 [2003] ).   As to the branch of the motion seeking to add a party defendant, leave to amend a pleading should generally be freely granted, but the party seeking amendment has the burden of establishing the merit of the proposal.   Leave to amend a complaint should be denied where the claim is palpably insufficient (Bencivenga & Co. v. Phyfe, 210 A.D.2d 22, 619 N.Y.S.2d 33 [1994] ).   Here, plaintiff failed to allege facts indicating the proposed additional party would be bound by an agreement to which it was not a signatory.   Conclusory assertions that the proposed additional party was simply an extension of one of the defendants did not sufficiently allege a basis for a departure from the general rule that nonparties to an agreement are not bound thereby (National Survival Game of N.Y. v. NSG of LI Corp., 169 A.D.2d 760, 565 N.Y.S.2d 127 [1991];  see also Brainstorms Internet Mktg. v. USA Networks, 6 A.D.3d 318, 775 N.Y.S.2d 844 [2004] ).