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

CROSSBEAT NEW YORK, LLC, Plaintiff–Appellant, v. LIIRN, LLC, Defendant–Respondent.


Decided: February 26, 2019

Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ. Guzov, LLC, New York (Anne W. Salisbury of counsel), for appellant. Anderson Kill P.C., New York (Christopher Paolino of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered October 5, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to amend the complaint to add a cause of action for fraudulent inducement against defendant's CEO, George Swisher, in his individual capacity, unanimously affirmed, without costs.

“A request for leave to amend a complaint should be freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law” (CIFG Assur. N. Am., Inc. v. J.P. Morgan Sec. LLC, 146 A.D.3d 60, 64–65, 44 N.Y.S.3d 2 [1st Dept. 2016] [internal quotation marks omitted];  CPLR 3025[b] ).  Here, plaintiff's proposed cause of action for fraudulent inducement against Swisher is duplicative of the breach of contract cause of action asserted against the corporate defendant.  Swisher's alleged promises that defendant would perform under the parties' agreements do not convert the alleged breach of contract into a tort (Cronos Group Ltd. v. XComIP, LLC, 156 A.D.3d 54, 62–63, 64 N.Y.S.3d 180 [1st Dept. 2017];  Cole, Schotz, Meisel, Forman & Leonard, P.A. v. Brown, 109 A.D.3d 764, 972 N.Y.S.2d 21 [1st Dept. 2013] ).

Furthermore, the allegations do not support personal liability against Swisher as a matter of law for actions he took in his capacity as an officer of the corporate defendant (Performance Comercial Importadora E Exportadora Ltda v. Sewa Intl. Fashions Pvt. Ltd., 79 A.D.3d 673, 915 N.Y.S.2d 44 [1st Dept. 2010] ).