Commercial Division Blog

Posted: June 9, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Appeals, Leave to Amend

Motion for Leave to Amend Granted in Part and Denied in Part Following Appellate Division Decision

On May 19, 2023, Justice Joel M. Cohen, of the New York County Commercial Division, issued a decision in in Homapour v. 3M Props., LLC, 2023 N.Y. Misc. LEXIS 2496.  The Court granted in part and denied in part the plaintiff’s motion for leave to amend the complaint, which was made following decisions made by the First Department and Second Department in the underlying action and related actions relevant to the motion.  The Court denied the motion as to one specific claim which was barred by the prior First Department order, but otherwise granted the motion for leave to amend.  The Court explained:

Plaintiff agrees (NYSCEF 751) that it may not replead direct claims against the Seligson Defendants as a result of the First Department's 2020 Order, which is the law of the case (Park Union Condominium v 910 Union St., LLC, 196 AD3d 427, 428, 151 N.Y.S.3d 388 [1st Dept 2021]), and thus the motion for leave to amend is denied to that extent. However, there is no clear showing that the balance of Plaintiff's proposed amendment is "duplicative of previously dismissed claims" or otherwise futile (Wilder v. Fresenius Med. Care Holdings, Inc., 2023 N.Y. App. Div. LEXIS 1986, 2023 NY Slip Op 01978 [1st Dept Apr. 18, 2023]). Thus, the Court does not find that the proposed amendment is "legally insufficient" on its face (Casanas v Casanas, 215 AD3d 443 [1st Dept 2023] citing Reyes v BSP Realty Corp., 171 AD3d 504, 504, 95 N.Y.S.3d 808 [1st Dept 2019]).

Finally, the Court does not find that any prejudice will accrue as a result of the amendment (Miah v Pipe Dreams Realty V Corp., 214 AD3d 575, 577 [1st Dept 2023] citing MBIA Ins. Corp. at 500).

Contact the Commercial Division Blog Committee at if you or a client have questions concerning a motion for leave to amend, or the impact of an Appellate Division decision on an ongoing case.