Gleitman v Kushner, 2023 NY Slip Op 05470 [220 AD3d 620]

October 31, 2023

Appellate Division, First Department

[*1]

Marc Gleitman, Individually and on Behalf of Review-Railroad Realty LLC and Another, Appellant,

v

David Kushner et al., Defendants. Jeffrey Meshel, Nonparty Respondent.

Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellant.

Hahn Eisenberger PLLC, Brooklyn (Elliot Hahn of counsel), for respondent.

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about November 9, 2022, which denied plaintiff’s 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 AD3d 488 , 488-489 [1st Dept 2021]; Brummer v Wey , 187 AD3d 566 , 566 [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 AD3d 126 , 130 [1st Dept 2019]; Matter of Brodsky v New York City Campaign Fin. Bd. , 107 AD3d 544 , 545 [1st Dept 2013]).

We have considered Meshel’s remaining contentions and find them unavailing. Concur—Kern, J.P., Friedman, Kennedy, Pitt-Burke, JJ..