Opinion
2003-608 N C.
Decided February 25, 2004.
Appeal by defendants from an order of the District Court, Nassau County (K. Gartner, J.), dated December 20, 2002, which granted plaintiff's cross motion for leave to serve a second amended complaint and denied, as moot, defendants' motion to dismiss the second and third causes of action asserted in plaintiff's first amended complaint.
Order unanimously reversed with $10 costs, defendants' motion to dismiss the second and third causes of action asserted in the amended complaint granted and plaintiff's cross motion for leave to serve a second amended complaint denied.
PRESENT: McCABE, P.J., LIFSON and SKELOS, JJ.
After defendants moved to dismiss the second and third causes of action asserted in the amended complaint, claiming that they failed to comply with CPLR 3016 (b), plaintiff cross-moved for leave to serve a second amended complaint. However, "leave to amend is not to be granted upon the mere request of a party without a proper basis" ( see Morgan v. Prospect Park Assocs. Holdings, 251 AD2d 306, 306). Inasmuch as plaintiff's cross motion was predicated upon the assertion of facts which were not previously set forth and the cross motion was not supported by an affidavit of merit from a person with personal knowledge of the facts, the cross motion should have been denied ( see Marinelli v. Shifrin, 260 AD2d 227; Morgan, 251 AD2d 306).
In addition, since the second and third causes of action asserted in the amended complaint were predicated upon fraudulent conduct allegedly perpetrated by defendants, it was incumbent upon plaintiff to ensure that her pleadings set forth the circumstances constituting the wrong in sufficient detail ( see CPLR 3016 [b]). Since the second and third causes of action set forth in the amended complaint did not satisfy the particularity requirement set forth in CPLR 3016 (b), defendants' motion to dismiss these causes of action should have been granted.
We note that we do not review the decision dated March 27, 2003 because it is not an order ( see CPLR 2219) and, thus, it is not appealable as of right ( see CPLR 5517 [b]).