ALVAREZ v. John Doe, et al., Defendants. (2022)

Order, Supreme Court, New York County (Paul A. Goetz, J), entered January 5, 2022, which, to the extent appealed from, granted defendant Charles Street Owners Corp.’s motion to amend its answer to add a counterclaim and two counterclaim defendants, unanimously affirmed, without costs.

The trial court providently exercised its discretion in permitting defendant to amend its answer to assert a counterclaim for ejectment in the absence of prejudice or surprise to plaintiff (see McCaskey, Davies & Assoc., Inc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240 [1983]).

Contrary to plaintiff's contention, there is no pending Civil Court holdover proceeding.  The Notice of Petition and Petition in that proceeding were never served, and defendant served and filed a Notice of Discontinuance in Civil Court before any responsive pleading was served (CPLR 3217[a][1]).

In addition, joinder of the additional counterclaim defendants, plaintiff's son and his companion, who are believed to be currently in possession of the apartment, was proper (CPLR 1001[a];  RPAPL 631 [“Where the complaint demands judgment for the immediate possession of the property, if the property is actually occupied, the occupant shall be made defendant in the action”]).

We have considered plaintiff's remaining arguments and find them unavailing.