Justice David Schmidt
Klein filed an action on behalf of 185 Marcy Corp. against the Gutman defendants, alleging he was a shareholder and director of 185 and Gutman was a shareholder, officer and director. Klein claimed that since 1983 he was the actual owner and holder of record of more than 40 percent of the common stock of 185 and Gutman exercised complete and exclusive control over its money, property, affairs, books and records. Klein alleged the Gutman defendants, acting as officers and directors, borrowed $3,937,000 and caused 185 to execute a note and mortgage. Klein further argued the Gutman defendants caused to be disbursed from the mortgage proceeds $1,040,000 to Central Equities, and that no consideration was received by 185 for this transfer. Defendants sought to amend their answer to assert the affirmative defenses of res judicata, collateral estoppel, spoliation and another action pending in federal court. The court denied the Gutman defendants’ motion for leave to amend their answer, noting the only parties that were the same in this action and in the related pending federal action were Klein and Gutman, adding 185 was never a party to the federal action.