Opinion
10527 Index 652365/14
12-10-2019
Jeffrey WEINSTEIN, Plaintiff–Respondent, v. W.W.W. ASSOCIATES, LLC, et al., Defendants–Appellants.
Michael B. Schulman & Associates, P.C., Melville (Michael B. Shulman of counsel), for appellants. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (David R. Brody of counsel), for respondent.
Michael B. Schulman & Associates, P.C., Melville (Michael B. Shulman of counsel), for appellants.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (David R. Brody of counsel), for respondent.
Friedman, J.P., Kapnick, Kern, Oing, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered July 27, 2018, which, inter alia, denied defendants' motion to dismiss or for summary judgment dismissing the complaint, and granted in part plaintiff's cross motion to amend the complaint, unanimously affirmed, with costs.
Given that defendants failed to show any significant prejudice from plaintiff's amendment of the complaint, the court providently exercised its discretion in allowing the amendment in part (see Kocourek v. Booz Allen Hamilton Inc. , 85 A.D.3d 502, 504, 925 N.Y.S.2d 51 [1st Dept. 2011] ). Nor are the highly detailed allegations of the proposed amended complaint, which are supported by extensive documentary evidence, "palpably insufficient" (see Cruz v. Brown , 129 A.D.3d 455, 456, 11 N.Y.S.3d 33 [1st Dept. 2015] ).
Defendants were unable to articulate any inequitable effect a judgment in this case would have on nonparty 553 Shore Road Corp., given that the corporation was dissolved in 2011. Since, at most, 553 is a joint tortfeasor, it is not a necessary party (see Amsellem v. Host Marriott Corp. , 280 A.D.2d 357, 360, 721 N.Y.S.2d 318 [1st Dept. 2001] ).
Defendants' failure to identify any of the supposed managing members on their tax returns, together with defendant Leon Weinstein's statement in the verified answer and at his deposition that he was the managing member of defendant W.W.W. Associates, LLC, and the contested role of defendants in the management of W.W.W. and its alleged managing members, presents an issue of fact as to whether Leon and defendant Kenneth Weinstein owed fiduciary duties to plaintiff (see Mahoney–Buntzman v. Buntzman , 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009] ; Arfa v. Zamir , 75 A.D.3d 443, 905 N.Y.S.2d 97 [1st Dept. 2010] ). We decline to reach defendants' unpreserved arguments (see 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] ).