Sook Hi Lee v. 401-403 57th St. Realty Corp.

Appellate Division of the Supreme Court of New York

Sook Hi Lee v. 401-403 57th St. Realty Corp.

306 A.D.2d 108, 759 N.Y.S.2d 873, 2003 N.Y. App. Div. LEXIS 6669

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 2003

StatusPublished

This text of 306 A.D.2d 108 (Sook Hi Lee v. 401-403 57th St. Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sook Hi Lee v. 401-403 57th St. Realty Corp., 306 A.D.2d 108, 759 N.Y.S.2d 873, 2003 N.Y. App. Div. LEXIS 6669 (N.Y. Ct. App. 2003).

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Opinion

—Judgment, Supreme Court, New York County (Charles Ramos, J.), entered November 14, 2001, which, in an action to compel issuance of stock and also seeking an accounting and damages for corporate waste and mismanagement, after opening statements in a non-jury trial, insofar as appealed from, dismissed plaintiff’s causes [109]*109of action relating to waste and mismanagement without prejudice, and denied plaintiff’s motion to amend the complaint without prejudice to her alleging the proposed amendments in a new action, unanimously affirmed, without costs.

Plaintiff’s eve-of-trial motion to amend the complaint so as to add six new defendants in a case already six years old was properly denied. To grant the motion would have required that the case be stricken from the calendar in order to afford the proposed new parties a fair opportunity to prepare a defense (cf. Heller v Louis Provenzano, Inc., 303 AD2d 20, 23-24 [2003]), and it does not appear that the named defendants, or even plaintiff, were amenable to such a result. Similar considerations warranted denial of that part of plaintiff’s motion to amend as sought to establish her ownership of the stock retroactively. Once the motion to amend was denied, there was nothing left to try. Defendants stipulated to the relief sought in the unamended complaint relating to share ownership, and the causes of action alleging waste and mismanagement were pleaded by plaintiff in her individual capacity and thus facially defective (see Abrams v Donati, 66 NY2d 951 [1985]). While plaintiff’s motion to amend sought to plead the latter causes of action derivatively, it also, as noted, sought to add six new defendants. Under the circumstances, the “without prejudice” disposition of the proposed claims was a proper exercise of discretion. Concur — Andrias, J.P., Saxe, Sullivan and Ellerin, JJ.

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—Judgment, Supreme Court, New York County (Charles Ramos, J.), entered November 14, 2001, which, in an action to compel issuance of stock and also seeking an accounting and damages for corporate waste and mismanagement, after opening statements in a non-jury trial, insofar as appealed from, dismissed plaintiff’s causes [109]*109of action relating to waste and mismanagement without prejudice, and denied plaintiff’s motion to amend the complaint without prejudice to her alleging the proposed amendments in a new action, unanimously affirmed, without costs.

Plaintiff’s eve-of-trial motion to amend the complaint so as to add six new defendants in a case already six years old was properly denied. To grant the motion would have required that the case be stricken from the calendar in order to afford the proposed new parties a fair opportunity to prepare a defense (cf. Heller v Louis Provenzano, Inc., 303 AD2d 20, 23-24 [2003]), and it does not appear that the named defendants, or even plaintiff, were amenable to such a result. Similar considerations warranted denial of that part of plaintiff’s motion to amend as sought to establish her ownership of the stock retroactively. Once the motion to amend was denied, there was nothing left to try. Defendants stipulated to the relief sought in the unamended complaint relating to share ownership, and the causes of action alleging waste and mismanagement were pleaded by plaintiff in her individual capacity and thus facially defective (see Abrams v Donati, 66 NY2d 951 [1985]). While plaintiff’s motion to amend sought to plead the latter causes of action derivatively, it also, as noted, sought to add six new defendants. Under the circumstances, the “without prejudice” disposition of the proposed claims was a proper exercise of discretion. Concur — Andrias, J.P., Saxe, Sullivan and Ellerin, JJ.

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Bluebook (online)

306 A.D.2d 108, 759 N.Y.S.2d 873, 2003 N.Y. App. Div. LEXIS 6669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sook-hi-lee-v-401-403-57th-st-realty-corp-nyappdiv-2003.

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