Opinion
8948N Index 306541/10
04-09-2019
Jose REYES, et al., Plaintiffs–Appellants, v. BSP REALTY CORP., Defendant–Respondent.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellants. Hertz, Cherson & Rosenthal, P.C, Forrest Hills (Jeffrey M. Steinitz of counsel), for respondent.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellants.
Hertz, Cherson & Rosenthal, P.C, Forrest Hills (Jeffrey M. Steinitz of counsel), for respondent.
Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about April 25, 2018, which, to the extent appealed from, denied plaintiffs' motion to amend the complaint to assert a claim for an equitable easement, unanimously affirmed, without costs.
While leave to amend should be freely granted under CPLR 3025(b), where the proposed amendment is devoid of merit, leave should be denied (see Heller v. Louis Provenzano, Inc. , 303 A.D.2d 20, 25, 756 N.Y.S.2d 26 [1st Dept. 2003] ). An amendment is devoid of merit where the allegations are legally insufficient (see Mosaic Caribe, Ltd. v. AllSettled Group, Inc. , 117 A.D.3d 421, 422, 985 N.Y.S.2d 33 [1st Dept. 2014] ).
Here, plaintiffs' proposed amendment to add a cause of action for an equitable easement could not be established as a matter of law. Plaintiffs' proposed amendment alleged facts in support of an affirmative easement to use and occupy the disputed parcel for their auto body repair shop. An equitable easement, however, applies to restrictive covenants or negative easements (see Nissen v. McCafferty , 202 App.Div. 528, 533, 195 N.Y.S. 549 [2d Dept. 1922] ). Rather, plaintiffs asserted allegations relating to an implied easement or easement by implication, for which the motion court permitted leave to amend (see Monte v. Di Marco , 192 A.D.2d 1111, 1112, 596 N.Y.S.2d 253 [4th Dept. 1993], lv denied 82 N.Y.2d 653, 601 N.Y.S.2d 583, 619 N.E.2d 661 [1993] ).
We have considered plaintiffs' remaining contentions and find them unavailing.