| T & V Constr., Inc. v Calapai |
| 2011 NY Slip Op 09310 [90 AD3d 908] |
| December 20, 2011 |
| Appellate Division, Second Department |
| T& V Construction, Inc., et al., Respondents, v AndrewCalapai, Appellant, et al., Defendant. |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Joseph R. Harbeson of counsel), forrespondents.
In an action, inter alia, pursuant to RPAPL article 15 and Real Property Law § 329 toquiet title to real property, the defendant Andrew Calapai appeals, as limited by his brief, from somuch of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated October 6, 2010, asdenied his motion for summary judgment dismissing the complaint insofar as asserted againsthim and for leave to amend his answer to assert counterclaims against the plaintiffs JohnVarveris and Mona Varveris to recover damages for use and occupancy of and intentionaldamage to real property.
Ordered that the order is affirmed insofar as appealed from, with costs.
"The New York Recording Act (Real Property Law § 290 et seq.) protects agood faith purchaser for value from a prior unrecorded interest in real property provided, interalia, that the subsequent purchaser's interest is the first to be duly recorded" (Transland Assets, Inc. v Davis, 29AD3d 679, 679 [2006]; see Real Property Law § 291; Sprint Equities [NY], Inc. v Sylvester,71 AD3d 664, 665 [2010]; Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d708, 709 [1997]). "The status of good faith purchaser for value cannot be maintained by apurchaser with either notice or knowledge of a prior interest or equity in the property, or one withknowledge of facts that would lead a reasonably prudent purchaser to make inquiries concerningsuch" (Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d at 709; see SprintEquities [NY], Inc. v Sylvester, 71 AD3d at 665).
Here, in moving for summary judgment dismissing the complaint insofar as asserted againsthim, the defendant Andrew Calapai failed to establish, prima facie, that he was a good faithpurchaser of the subject property. The evidence he submitted failed to eliminate a triable issue offact as to whether he possessed "facts that would lead a reasonably prudent purchaser to makeinquiries" that, in turn, would have disclosed the ownership interest of the plaintiff T&VConstruction, Inc. (Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d at 709; see Maiorano v Garson, 65 AD3d1300, 1302-1303 [2009]). Since Calapai failed to meet his initial burden as the movant, it isnot necessary to review the sufficiency of the plaintiffs' opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Courtproperly denied that [*2]branch of Calapai's motion which wasfor summary judgment dismissing the complaint insofar as asserted against him.
Furthermore, the Supreme Court providently exercised its discretion in denying that branchof Calapai's motion which was for leave to amend his answer to assert counterclaims against theplaintiffs John Varveris and Mona Varveris to recover damages for use and occupancy of andintentional damage to real property. "In the absence of prejudice or surprise to the opposingparty, leave to amend a pleading should be freely granted unless the proposed amendment ispalpably insufficient or patently devoid of merit" (G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007], affd10 NY3d 941 [2008]; see CPLR 3025 [b]; Malanga v Chamberlain, 71 AD3d 644, 646 [2010]). Where,however, "an application for leave to amend is sought after a long delay and the case has beencertified as ready for trial, 'judicial discretion in allowing such amendments should be discrete,circumspect, prudent, and cautious' " (Countrywide Funding Corp. v Reynolds, 41 AD3d 524, 525[2007], quoting Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552, 552 [1997]). "Thecourt's exercise of discretion in determining such an application will not lightly be disturbed" (Trataros Constr., Inc. v New York CitySchool Constr. Auth., 46 AD3d 874, 874 [2007]). In light of Calapai's delay in movingfor leave to amend his answer to add counterclaims, and in light of his failure to set forth areasonable excuse for the delay in seeking such relief, we discern no reason to disturb theSupreme Court's determination on this issue (see Alrose Oceanside, LLC v Mueller, 81 AD3d 574, 575 [2011];American Cleaners, Inc. v AmericanIntl. Specialty Lines Ins. Co., 68 AD3d 792, 794 [2009]).
Calapai's remaining contentions are without merit. Rivera, J.P., Balkin, Eng and Austin, JJ.,concur.