Can I Amend a Complaint to Add a Party to a Case that was Filed Three Years Ago?

Full Question:

Can I file a modified complaint after more than 3 years as the action hasn't been settled yet, to add the LLCs my husband controlled involving real property, to the action as parties. These LLCs were also put into receivership by his ex business partner in 2010. The ex business partner claimed my husband defaulted on their buyout agreement and filed to be Judgment Creditor Receiver and was appointed. I also want to file a Lis Pendens to prevent this receiver from selling off the properties and leaving me with nothing. I loaned my husband half a million dollars for the business right after I filed for divorce when he claimed one of the properties wasn't going to be able to continue to operate unless I did so. He now refuses to repay me and claims he is indigent. Its all an act from him but he is totally uncooperative so I don't have access to the business records to show where literally hundreds of millions of dollars went over the past 8 yrs. I don't know if I can file the Lis Pendens against the properties of the LLCs that haven't been sold yet if they aren't parties to the divorce but can I add them? The judge in the receivership has never considered my interests and has denied every motion from me although she gave me the right to file them. She refused to grant me status as interveiner. My prior attorneys never filed the Lis Pendens and my husband secretly sold several properties the proceeds of which he was supposed to have deposited into an escrow account. He never did and hasn't paid me the loan or any of the interest he was supposed either. This loan and repayment agreement was part of a stipulation between me and my husband but is worthless it seems because the Receiver has refused to comply with any of it just like my husband and the receivership judge has allowed that to occur despite the fact that I made this loan from my separate property in order to enable one of the LLCs to continue to operate. I was told by one of my attorneys that I had separate property which my husband couldn't touch unless i agreed. I was under duress when I made the loan as I was told by my attorney that if I didn't make the loan I would never obtain a divorce because of a long marriage of over 35 years.
01/17/2012   |   Category: Civil Actions   |   State: New York   |   #25589

Answer:

Because we're assuming the other party has already filed an answer, you would need to get permission from the court to file the amended complaint. Please see the forms below.

It is possible the LLC may be joined in the action as necessary or permissive parties. There are generally three ways that someone can be a necessary party:
1.in the absence of the party complete relief cannot be provided to existing parties
OR
the absent party claims an interest relating to the subject of the action and a disposition of the action without that person may
2.as a practical matter impair his ability to protect that interest OR
3.leave the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations.

We suggest you consult a local attorney who can review all the facts and documents involved.

Please see the following NY rules of civil procedure to determine applicability:

§ 1001 N.Y.C.P.L.R. Necessary joinder of parties.

(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant.

(b) When joinder excused. When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned. If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party. In determining whether to allow the action to proceed, the court shall consider:

1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;

2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined;

3. whether and by whom prejudice might have been avoided or may in the future be avoided;

4. the feasibility of a protective provision by order of the court or in the judgment; and

5. whether an effective judgment may be rendered in the absence of the person who is not joined.

§ 1002 N.Y.C.P.L.R. Permissive joinder of parties.

(a) Plaintiffs. Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.

(b) Defendants. Persons against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence, or series of transactions or occurrences, may be joined in one action as defendants if any common question of law or fact would arise.

(c) Separate relief; separate trials. It shall not be necessary that each plaintiff be interested in obtaining, or each defendant be interested in defending against, all the relief demanded or as to every claim included in an action; but the court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and, who asserts no claim against him, and may order separate trials or make other orders to prevent prejudice.