| HSBC Bank USA v Philistin |
| 2012 NY Slip Op 06580 [99 AD3d 667] |
| October 3, 2012 |
| Appellate Division, Second Department |
| HSBC Bank USA, Respondent, v Gabriel Philistin,Appellant, et al., Defendants. |
—[*1] Houser & Allison, APC, New York, N.Y. (Mitra Paul Singh of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Gabriel Philistin appeals from an order ofthe Supreme Court, Nassau County (Adams, J.), entered August 10, 2011, which denied hismotion to dismiss the complaint for lack of standing or, in the alternative, for leave to amend theanswer to assert the defense of lack of standing.
Ordered that the order is affirmed, with costs.
The defendant Gabriel Philistin (hereinafter the defendant) failed to assert, in his answer orin a pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a), the defense that theplaintiff lacked standing at the time it commenced the action (see CPLR 3211 [a] [3]; Bank of N.Y. v Silverberg, 86 AD3d274, 279-280 [2011]). Subsequently, the plaintiff moved for summary judgment on thecomplaint. The defendant did not oppose the motion, and the Supreme Court granted it by orderentered August 24, 2010. More than seven months later, the defendant moved to dismiss thecomplaint on the ground that the plaintiff lacked standing or for leave to amend his answer toassert the defense of lack of standing. The Supreme Court denied the defendant's motion, and thedefendant appeals. We affirm.
A motion for leave to amend a pleading should be freely granted in the absence of prejudiceor surprise resulting directly from the delay, unless the amendment would be palpablyinsufficient or patently devoid of merit (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220,229 [2008]). Here, the defendant had not moved before serving his answer to dismiss thecomplaint on the ground of lack of standing, and he did not raise the defense of lack of standingin his answer. By not raising the defense at that time, he failed to put the plaintiff on notice of thedefense at a time the plaintiff could have cured any defect by promptly recommencing the action.The defendant's delay in asserting the defense continued for an extended period of time. Indeed,he failed to oppose the plaintiff's motion for summary judgment on the complaint, and he waitedmore than seven additional months after the motion for summary judgment had been grantedbefore moving for leave to amend his answer to assert the defense of lack of standing (see Amaranth LLC v National AustraliaBank Ltd., 40 AD3d 279, 280 [2007]; JP Foodservice Distribs., Inc. vPricewaterhouseCoopers LLP, 33 AD3d [*2]316, 317 [2006];see generally Siegel, NY Prac § 237 at 411 [5th ed]). Under these circumstances,the Supreme Court did not improvidently exercise its discretion in denying that branch of thedefendant's belated motion which was for leave to amend the answer (see Amaranth LLC vNational Australia Bank Ltd., 40 AD3d at 280). For the same reasons, the Supreme Courtproperly denied that branch of the defendant's motion which was to dismiss the complaint forlack of standing. Balkin, J.P., Hall, Lott and Cohen, JJ., concur.