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SULLIVAN v. WEST NEW YORK RESIDENTIAL

March 4, 2003

JEREMIAH SULLIVAN IN HIS FIDUCIARY CAPACITY AS A TRUSTEE FOR THE POINTERS, CLEANERS & CAULKERS WELFARE, PENSION & ANNUITY FUNDS, AND AS SECRETARY-TREASURER OF THE BRICKLAYERS & ALLIED CRAFTWORKERS LOCAL UNION NO. 1, B.A.C.I.U., AFL-CIO, PLAINTIFFS, AGAINST WEST NEW YORK RESIDENTIAL, INC., WEST NEW YORK RESTORATION, INC., ALFRED GALLICCHIO, ALAN GALLICCHIO, AND JAN PAWELEC, DEFENDANTS.


The opinion of the court was delivered by: I. Leo Glasser, United States District Judge

MEMORANDUM & ORDER

SUMMARY

Plaintiffs seek to add a new party to this action, West New York Restoration of CT, Inc. ("WNYCT"), pursuant to Rules 15(a) and 21 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted.

BACKGROUND*fn1

This action was commenced against defendants West New York Residential, Inc. ("Residential"), West New York Restoration, Inc. ("Restoration"), and Alfred Gallicchio on November 26, 2001. After some discovery, plaintiffs filed an amended complaint on July 11, 2002, adding Alan Gallicchio and Jan Pawelec as defendants, and adding a claim against Alfred Gallicchio on the theory of ERISA fiduciary liability.

In July 2002, plaintiffs' counsel learned of the existence of WNYCT and West New York Restoration JP, Inc. ("JP") from a review of records from the Secretary of State. According to these records, dated July 7, 2002, WNYCT was incorporated on June 13, 2002, and Alfred Gallicchio was a principal of the company. JP was incorporated on June 21, 2002, and shared the same address as Restoration.

Only after deposition testimony which apparently concluded on January 28, 2003, did plaintiffs' counsel learn of information suggesting that WNYCT was an alter ego of Restoration. This information included the facts that a) Alfred Gallicchio was the president of both Restoration and WNYCT, b) both companies performed exterior masonry work covered by the collective bargaining agreement with plaintiffs, c) both companies utilized the same office space, d) many of Restoration's former employees, including three project managers. have worked or currently work for WNYCT, e) WNYCT had assumed several of Restoration's ongoing projects. and f) Jacek Slowac, a project manager for both companies. continued to manage a project for Restoration while receiving his paycheck from WNYCT.

Plaintiffs' counsel also learned that Jan Pawelec was the sole shareholder of JP, which company had never engaged in any activity. By that point, plaintiffs had already filed a notice of dismissal without prejudice against defendant Pawelec only.

Plaintiffs now move, by Notice of Motion dated February 7, 2003, and Reply Notice of Motion dated February 25, 2003, to add WNYCT as a defendant.

DISCUSSION

I. Legal Standard

Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend its complaint "by leave of court" which should be "freely given when justice so requires." A motion to amend should be denied if 1) the party seeking to amend has been guilty of undue delay, dilatory motive, bad faith or repeated failure to cure deficiencies by previous amendments allowed, 2) the amendment would result in undue prejudice to the opposing party, or 3) the amendment would be futile. See Dluhos v. The Floating and Abandoned Vessel, Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998).

Under Rule 21 of the Federal Rules of Civil Procedure, "[p]arties may be . . . added by order of the court on motion by any party . . . on such terms as are just." Rule 21 allows the court broad discretion to permit the addition of a party at any stage in the litigation. See Andujar v. Rogowski, 113 F.R.D. 151, 154 (S.D.N.Y. 1986) (citing 7 C. ...


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