Opinion
April 30, 1990
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the appeal from the order dated February 22, 1989 is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated September 15, 1988 is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The plaintiff moved, inter alia, to serve a second amended complaint in which it sought to include a cause of action based upon an unconstitutional taking by the defendant Town of Oyster Bay, as well as a claim premised upon fraud and coercion. The Supreme Court denied the plaintiff's motion in its entirety. We find no reason to disturb this determination.
The decision to grant a motion to amend a pleading is a matter of judicial discretion to be determined on a case-by-case basis (see, Fulford v. Baker Perkins, Inc., 100 A.D.2d 861). Upon a review of the record, we find that the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to amend its complaint.
In order to show that an unconstitutional taking has occurred, a landowner must prove that the land cannot yield an economically reasonable return as zoned (see, Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492; Tilles Inv. Co. v. Town of Huntington, 137 A.D.2d 188, affd 74 N.Y.2d 885). It is not enough to prove that the land would be more valuable under a less restrictive class (Tilles Inv. Co. v. Town of Huntington, supra). At bar, the subject property is located in a residential district, and the plaintiff failed to present any facts which would establish that the property as presently zoned would not yield a reasonable return (see, F.M.V. Realty Co. v. Vecchio, 150 A.D.2d 423).
Moreover, the plaintiff offered no valid explanation why the allegations of fraud and coercion were not contained in the original complaint, nor any excuse for the long delay in making the instant motion. Thus, we find that the denial of the plaintiff's motion was proper for this reason as well (see, Schroeder v. Brooklyn Hosp., 119 A.D.2d 564). Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.