| Aurora Loan Servs., LLC v Thomas |
| 2010 NY Slip Op 01606 [70 AD3d 986] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Aurora Loan Services, LLC, Appellant, v TerenceThomas, Respondent, et al., Defendants. |
—[*1] Judith Reardon, Katonah, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Suffolk County (Mayer, J.), dated March 13, 2009, asgranted those branches of the motion of the defendant Terence Thomas which were for leave toamend his answer to assert the defenses of lack of standing and lack of capacity to sue, and toassert violations of article 12-D of the Banking Law, violations of the Real Estate Settlement andProcedures Act (12 USC § 2604 [c]), and violations of the Truth in Lending Act (15 USC§ 1601 et seq.).
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of the defendant Terence Thomas which were for leave to amendhis answer to assert violations of article 12-D of the Banking Law, violations of the Real EstateSettlement and Procedures Act, and violations of the Truth in Lending Act, and substitutingtherefor a provision denying those branches of the motion; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
Contrary to the plaintiff's contention, the defendant Terence Thomas did not waive thedefenses of lack of standing and lack of capacity to sue (cf. Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239 [2007]). Further, the Supreme Court properly granted thosebranches of Thomas's motion which were for leave to amend his answer to assert the defenses oflack of standing and lack of capacity to sue. Motions for leave to amend pleadings should befreely granted, absent prejudice or surprise directly resulting from the delay in seeking leave,unless the proposed amendment is palpably insufficient or patently devoid of merit (seeCPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]). Here, the proposedamendments were not palpably insufficient or patently devoid of merit. Since the documentsupon which Thomas relied in making his motion were obtained from the plaintiff in discovery,there was also no showing of prejudice or surprise resulting directly from Thomas's delay inseeking leave. Accordingly, the Supreme Court properly granted those branches of Thomas'smotion.
However, the Supreme Court erred in granting those branches of Thomas's motion [*2]which were for leave to amend his answer to assert violations ofarticle 12-D of the Banking Law, violations of the Real Estate Settlement and Procedures Act(12 USC § 2604 [c]), and violations of the Truth in Lending Act (see 15 USC§ 1601 et seq.). As the plaintiff correctly contends, those proposed amendmentswere, among other things, palpably insufficient as a matter of law and devoid of merit (seee.g. Rosner v Rosner, 66 AD3d 983 [2009]). Rivera, J.P., Leventhal, Lott and Austin, JJ.,concur.