| Aurora Loan Servs., LLC v Dimura |
| 2013 NY Slip Op 01797 [104 AD3d 796] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Aurora Loan Services, LLC,Respondent, v Michael Dimura et al., Appellants, et al.,Defendants. |
—[*1] Tompkins, McGuire, Wachenfeld & Barry, LLP, New York, N.Y. (William C.Sandelands of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Michael Dimura and JacquelineDimura appeal, as limited by their brief, from so much of an order of the Supreme Court,Orange County (Ecker, J.), dated March 15, 2012, as granted that branch of the plaintiff'smotion which was pursuant to CPLR 3025 (b) for leave to amend its reply to theircounterclaims to add an affirmative defense based on the statute of limitations.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Leave to amend a pleading should be freely given (see CPLR 3025 [b]),provided that the amendment is not palpably insufficient, does not prejudice or surprisethe opposing party, and is not patently devoid of merit" (Sheila Props., Inc. v A Real GoodPlumber, Inc., 59 AD3d 424, 426 [2009]; see Gitlin v Chirinkin, 60 AD3d 901, 901-902 [2009]). "Adetermination whether to grant such leave is within the Supreme Court's broaddiscretion, and the exercise of that discretion will not be lightly disturbed" (Gitlin vChirinkin, 60 AD3d at 902; see Ingrami v Rovner, 45 AD3d 806, 808 [2007]). "Merelateness is not a barrier to the amendment. It must be lateness coupled with significantprejudice to the other side" (Edenwald Contr. Co. v City of New York, 60 NY2d957, 959 [1983] [internal quotation marks omitted]; see U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724 [2011];Public Adm'r of Kings County vHossain Constr. Corp., 27 AD3d 714, 716 [2006]).
The plaintiff waived its statute of limitations defense by failing to assert it as anaffirmative defense in its initial reply to the appellants' counterclaims (see CPLR3211 [e]). However, defenses waived under CPLR 3211 (e) can nevertheless beinterposed by leave of court pursuant to CPLR 3025 (b) so long as the amendment doesnot cause the other party prejudice or surprise resulting directly from the delay (seeU.S. Bank, N.A. v Sharif, 89 AD3d at 724; Sayers v Albicocco, 298 AD2d572, 573 [2002]; McGaulley v Telling, Kelting & Potter, 241 AD2d 669,669-670 [1997]). Since the proposed amendment did not result in any prejudice orsurprise to the defendants and was not palpably insufficient or patently devoid of merit,the Supreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was pursuant to CPLR 3025 (b) for leave to amend its reply tothe defendants' counterclaims to add an affirmative defense based on the [*2]statute of limitations. Rivera, J.P., Angiolillo, Chambersand Roman, JJ., concur.