Opinion
951 Index No. 153660/19 Case No. 2022-05534
10-31-2023
Marc GLEITMAN, etc., et al., Plaintiffs–Appellants, v. David KUSHNER et al., Defendants. Jeffrey Meshel, Nonparty Respondent.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellants. Hahn Eisenberger PLLC, Brooklyn (Elliot Hahn of counsel), for respondent.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellants.
Hahn Eisenberger PLLC, Brooklyn (Elliot Hahn of counsel), for respondent.
Kern, J.P., Friedman, Kennedy, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about November 9, 2022, which denied plaintiffs’ renewed motion to amend his complaint to add nonparty Jeffrey Meshel as a defendant, unanimously reversed, on the law, without costs, the motion granted, and the amended complaint deemed served and filed as of the date of this decision.
Supreme Court improvidently exercised its discretion in denying the motion for leave to amend. Meshel failed to establish that he would suffer prejudice or surprise if the complaint were amended, as he is already defending a counterclaim asserted against him in a related action based on the same activity that forms the basis of the amended complaint (see St. Nicholas W. 126 L.P. v. Republic Inv. Co., LLC, 193 A.D.3d 488, 488–489, 146 N.Y.S.3d 612 [1st Dept. 2021] ; Brummer v. Wey, 187 A.D.3d 566, 566, 135 N.Y.S.3d 4 [1st Dept. 2020] ).
We decline to consider the arguments that Meshel improperly raises for the first time on appeal concerning the insufficiency of the causes of action against him, as those issues are unpreserved for our review (see Wells Fargo Bank N.A. v. Ho–Shing, 168 A.D.3d 126, 130, 92 N.Y.S.3d 194 [1st Dept. 2019] ; Matter of Brodsky v. New York City Campaign Fin. Bd., 107 A.D.3d 544, 545, 971 N.Y.S.2d 265 [1st Dept. 2013] ).
We have considered Meshel's remaining contentions and find them unavailing.