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Toscano v. Toscano

302 A.D.2d 453 Court N.Y. App. Div. Decision date 2003-02-10 English

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p. 453
Anthony Toscano et al., Appellants, v Angelo Toscano et al., Respondents.
[754 NYS2d 888]

In an action, inter alia, to recover damages for wrongful appropriation of corporate property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kit-son, J.), dated March 25, 2002, as denied that branch of their motion which was pursuant to CPLR 3025 (b) for leave to amend the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the plaintiffs’ motion which was pursuant to CPLR 3025 (b) for leave to amend the complaint, because the plaintiffs failed to make an evidentiary showing that the proposed amendment had merit (see Arnold v Siegel, 296 AD2d 363 ; Ogilvie v McDonald’s Corp., 294 AD2d 550 ; Tatzel v Kaplan, 292 AD2d

p. 454
440 ; Rice v Penguin Putnam, 289 AD2d 318 ; Citarelli v American Ins. Co., 282 AD2d 494 ; Curran v Auto Lab Serv. Ctr., 280 AD2d 636 ). While leave to amend a complaint should be freely granted (see CPLR 3025 [b]), a movant must make some evidentiary showing, and “a court must examine the underlying merit of the proposed claims, since to do otherwise would be wasteful of judicial resources” (Morgan v Prospect Park Assoc. Holdings, 251 AD2d 306 ). Santucci, J.P., Luciano, Schmidt and Adams, JJ., concur.

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