RBP of 400 W42 St., Inc. v. 400 West 42nd Street Realty Associates

Order, Supreme Court, New York County (Karen S. Smith, J.), entered May 13, 2005, which denied plaintiffs motion for leave to file an amended complaint, unanimously affirmed, with costs.

Plaintiff tenant sought to add claims already rendered merit-less by the court’s previous and undisturbed finding that defendant landlord had not acted in bad faith in refusing to consent to a proposed assignment of the lease and invoking the provisions for its recapture. Although leave to amend pleadings should be freely granted absent prejudice or surprise resulting from delay (CPLR 3025 [b]), leave should be denied where, as here, the proposed claim is palpably insufficient (Bencivenga & Co. v Phyfe, 210 AD2d 22 [1994]). Concur—Tom, J.P., Friedman, Nardelli, Williams and Sweeny, JJ.