Commercial Division Blog

Posted: April 15, 2024 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Amendment, Appeals

Court Denies Motion To Amend Complaint To Add New Claims After Dismissal Of Original Claims On Appeal

On March 11, 2024, Justice Andrew Borrok denied a plaintiff’s motion to amend his complaint to add new theories of liability after the Appellate Division dismissed his original claims.  The decision in Finkelstein v. U.S. Bank, National Associate, As Trustee, Index No. 650849/2021, flagged a number of problems with the plaintiff’s proposed amended complaint, including that the claims were untimely and did not relate back to the original complaint.  But the Court also noted that the Plaintiff had not shown a reasonable excuse for his delay in moving to amend to add the new claims, rejecting his argument that dismissal on appeal had altered the law in a way that justified amendment.  The Court explained: 

In this case, the Plaintiff asks this Court for leave to amend because the Appellate Division dismissed the Plaintiff’s earlier claims. . . . It is clear that the Plaintiff made a deliberate tactical decision at the commencement of this litigation not to sue on a number of legal theories.  Having charted his own course, the Plaintiff cannot now be heard to complain at this late hour and the change in the law does not provide any new basis upon which it can recover. 

The decision highlights the importance of preserving claims at the outset of litigation.  The attorneys at Schlam Stone & Dolan frequently counsel clients on available theories of liability to help them create effective strategies from the first filing. Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.