Opinion
2002-09002
Argued October 2, 2003.
November 10, 2003.
In an action to recover a real estate brokerage commission, the plaintiff appeals from an order of the Supreme Court, Westchester County (La Cava, J.), entered August 26, 2002, which granted the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and denied its cross motion for leave to amend the complaint to add the defendant Valerie Calabria-Maher in her capacity as executrix of the estate of Concetta Calabria as a party.
Daniel S. Ronan, Bellerose, N.Y., for appellant.
Keane Beane, P.C., White Plains, N.Y. (Judson K. Siebert and Nancy Tagliafierro of counsel), for respondent Valerie Calabria-Maher.
Before: NANCY E. SMITH, J.P., LEO F. McGINITY, HOWARD MILLER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( see Trade Source v. Westchester Wood Works, 290 A.D.2d 437). Here, the documentary evidence submitted by both parties flatly contradicted the factual claims alleged in the complaint ( see Morris v. Morris , 306 A.D.2d 449; Marjorie Hausman Realty Co. v. Klaver , 262 A.D.2d 613; Corporate Nat. Realty v. Philson Ltd., 232 A.D.2d 518). Accordingly, the Supreme Court properly dismissed the complaint.
Further, as the plaintiff failed to establish any contractual privity between itself and the proposed defendant, or that there was a meeting of the minds between the buyer and the seller on the essential terms of the sale ( see Salazar, Inc. v. Levy , 237 A.D.2d 583), the Supreme Court properly denied the plaintiff's cross motion for leave to amend the complaint to add a party defendant since "an amendment which is devoid of merit, and whose insufficiency or lack of merit is 'clear and free from doubt' will not be permitted" ( Mathison v. Zocco, 207 A.D.2d 434, 435, quoting Hauptman v. New York City Health Hosps. Corp., 162 A.D.2d 588, 589).
The plaintiff's remaining contentions are without merit.
SMITH, J.P., McGINITY, H. MILLER and RIVERA, JJ., concur.