From Casetext: Smarter Legal Research

Bankers Trust Company v. Cusumano

Appellate Division of the Supreme Court of New York, First Department
Nov 26, 1991
177 A.D.2d 450 (N.Y. App. Div. 1991)

Opinion

November 26, 1991

Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).


Leave to amend may be denied where the proposed amendment is palpably insufficient as a matter of law. (Bank Leumi Trust Co. v. D'Evori Intl., 163 A.D.2d 26, 28.) Appellant's proposed amendment increasing the ad damnum clauses of his pleadings so as to reflect accretion to decedent's account from date of death to the present is palpably without merit, since paragraph 7.7 of the plan expressly limits the distribution, upon death, to "the amount to the credit of [decedent's] account as of the last day of the calendar month in which [decedent's] death occurs". Appellant, as a claimed plan "beneficiary", has no right to elect a stock rather than cash distribution, as would a plan "participant" upon termination under paragraph 7.10 of the plan. Nor did the court abuse its discretion in denying appellant leave to assert a claim for attorneys' fees pursuant to 29 U.S.C. § 1132 (g). There has been no demonstration of bad faith on plaintiff's part, and no purpose would be served by allowing such an award (see, Dixon v Seafarers' Welfare Plan, 878 F.2d 1411).

Concur — Murphy, P.J., Rosenberger, Ellerin and Asch, JJ.


Summaries of

Bankers Trust Company v. Cusumano

Appellate Division of the Supreme Court of New York, First Department
Nov 26, 1991
177 A.D.2d 450 (N.Y. App. Div. 1991)
Case details for

Bankers Trust Company v. Cusumano

Case Details

Full title:BANKERS TRUST COMPANY, Respondent, v. BENJAMIN CUSUMANO, Individually and…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 26, 1991

Citations

177 A.D.2d 450 (N.Y. App. Div. 1991)
576 N.Y.S.2d 546

Citing Cases

Zfi Endowment Partners, L.P. v. David Goldin, Amerimerchant, LLC

This Court finds that the proposed amendments are palpably insufficient for the reasons set forth herein,…

Wright v. Dennis

) However, "in order to conserve judicial resources, an examination of the underlying merits of the proposed…