| Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan |
| 2009 NY Slip Op 08191 [67 AD3d 750] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Maspeth Federal Savings and Loan Association,Plaintiff, v Pamela A. Simon-Erdan, Also Known as Pamela Simon, et al., Defendants.David Schreiber, Nonparty Appellant. |
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In an action to foreclose a mortgage, David Schreiber, as the assignee of the mortgage,appeals from an order of the Supreme Court, Kings County (Demarest, J.), dated November 21,2008, which denied his unopposed motion to restore the action to the pre-note of issue calendarand amend the caption and pleadings to substitute himself as the plaintiff in place of MaspethFederal Savings and Loan Association, and dismissed the action for failure to prosecute.
Ordered that the order is reversed, on the law, without costs or disbursements, and themotion of the nonparty appellant David Schreiber, as the assignee of the mortgage, to restore theaction to the pre-note of issue calendar and amend the caption and pleadings to substitute himselfas the plaintiff in place of Maspeth Federal Savings and Loan Association is granted.
Since the preconditions set forth in CPLR 3216 were not met, the Supreme Court waswithout power to dismiss the action on the ground of a general lack of prosecution (see Chasev Scavuzzo, 87 NY2d 228, 233 [1995]; Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124 [2007]; Kesar v Green Ridge Enters. Corp., 30AD3d 471 [2006]; Dominique vFlushing Hosp. Med. Ctr., 22 AD3d 789 [2005]; O'Connell v City Wide Auto Leasing, 6 AD3d 682 [2004]).Moreover, since the action was still in the pre-note of issue stage, the rules governing CPLR3404 were inapplicable (see Sellitto vWomen's Health [*2]Care Specialists, 58 AD3d 828[2009]; Suburban Restoration Co., Inc.v Viglotti, 54 AD3d 750 [2008]).
"Leave to amend a pleading should be freely given (see CPLR 3025 [b]), providedthe amendment is not palpably insufficient, does not prejudice or surprise the opposing party,and is not patently devoid of merit" (Ruby Land Dev. v Toussie, 4 AD3d 518, 519 [2004]). Here, theSupreme Court improvidently exercised its discretion in denying the motion of David Schreiberto amend the caption and pleadings to substitute himself as the plaintiff in the action. Theplaintiff had assigned its interest in the mortgage to Schreiber after this action had beencommenced, and the defendants did not oppose his motion (see East Coast Props. v Galang,308 AD2d 431 [2003]). Mastro, J.P., Dillon, Dickerson, Belen and Lott, JJ., concur.