On November 28, 2022, Justice Chan of the New York County Commercial Division issued a decision in Ja Kao v. Onyx Renewable Partners L.P., 2022 NY Slip Op. 34046(U), denying a motion to amend a claim against a defendant when the claims in the original complaint had been dismissed with prejudice, explaining:
Plaintiff seeks leave to amend the complaint to: (i) re-add Maxwell as a party based on additional allegations to support her discrimination and retaliation claims against him that were dismissed by the March 8 Decision; (ii) include additional allegations as against defendants Onyx, ORP GP, Black Onyx and Khan (together, defendants) to support the retaliation claim; and (iii) add supplemental allegations concerning events that occurred after the filing of the original complaint.
Maxwell and defendants separately oppose the motion. Maxwell argues that the complaint cannot be amended to include new claims against him since the March 8 Decision dismissed the claims against him with prejudice, and that, in any event, the proposed amendments are futile since the new allegations do not state claims against him for either gender discrimination or retaliation including because Maxwell is not alleged to have participated in any asserted retaliation.
. . .
At the outset, with regard to the proposed amended claims asserted against Maxwell, the prior dismissal of the complaint, which addressed the merits and included a direction for the Clerk to enter a judgment in Maxwell’s favor, requires the denial of the motion to amend as to Maxwell. In this connection, the court notes that plaintiff had an opportunity, but failed, to seek leave to amend the complaint in response to Maxwell’s dismissal motion and that she has filed a notice to appeal the March 8 Decision.
(Internal citations omitted).