| Kleinser v Astarita |
| 2009 NY Slip Op 03401 [61 AD3d 597] |
| April 28, 2009 |
| Appellate Division, First Department |
| Dale Kleinser, Respondent, v Mark Astarita et al.,Appellants. |
—[*1] Dale Kleinser, respondent pro se.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered December 9, 2008,which, in an action for legal malpractice, granted plaintiff's motion to join additional parties,unanimously affirmed, with costs.
Plaintiff pro se served an amended complaint without leave of the court in which he namedas additional defendants four partners of the law firm that had represented him in the underlyingaction. Defendants moved to dismiss the amended complaint on the ground that the newly addedpartners had no connection with the underlying action or contact with plaintiff. The motioncourt, after noting that the amended complaint was improperly served without court leave,dismissed it as against the newly added partners for failure to state a cause of action as againstthem "in their individual capacity." Several months later, plaintiff moved for leave to add thesame four partners, submitting a proposed second amended complaint that was the same as thefirst except that it added an allegation that the four were partners of the firm at the time of thealleged malpractice "and are each individually, jointly and severally, liable for the acts andomissions of their partners." The motion court characterized the claim against the proposed fournew defendants as "colorable," citing Partnership Law § 26, and granted plaintiff leave toadd them.
On appeal, defendants do not argue that the amended complaint fails to state a cause ofaction as against the four newly added defendants, but rather that the court, in permitting theirjoinder, violated the law of the case doctrine, exceeded its authority by exercising appellatejurisdiction to sua sponte vacate its own order, and erroneously granted what was actually anuntimely motion to reargue. The law of the case doctrine, however, is not implicated because thecourt did not alter a ruling by another court of coordinate jurisdiction but rather its own ruling(Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333 [2009]). "[E]very courtretains continuing jurisdiction to reconsider its [own] prior interlocutory orders during thependency of the action" (Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do so"regardless of statutory time limits concerning motions to reargue" (id.). Thus, even ifplaintiff's motion for leave to add the four partners were a belated motion to reargue the priororder dismissing the action as against those partners for failure to state a cause of action, thecourt had discretion to [*2]reconsider its prior order, sua sponte,and correct it. Such discretion was properly exercised here in view of plaintiff's pro se status.Concur—Andrias, J.P., Catterson, DeGrasse and Richter, JJ. [See 2008 NY SlipOp 33288(U).]