| Bank of Smithtown v 219 Sagg Main, LLC |
| 2013 NY Slip Op 03959 [107 AD3d 654] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Bank of Smithtown, Respondent, v 219 SaggMain, LLC, et al., Appellants, et al., Defendants. |
—[*1] Jeffrey B. Hulse, Sound Beach, N.Y., for respondent.
In an action to foreclose a mortgage, the defendants 219 Sagg Main, LLC, BenjaminRingel, and Yael Ringel appeal, as limited by their brief, from (1) so much of an order ofthe Supreme Court, Suffolk County (Jones, Jr., J.), dated July 27, 2011, as granted thatbranch of the plaintiff's motion which was for summary judgment dismissing theiranswer and denied that branch of their cross motion which was pursuant to CPLR 3025for leave to amend the answer to assert two additional counterclaims, and (2) so much ofa judgment of foreclosure of the same court dated May 31, 2012, as was in favor of theplaintiffs and against them.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff met its initial burden of establishing its entitlement to judgment as amatter of law by producing the mortgage, the unpaid note, and an affidavit of itsvice-president, evidencing the appellants' default in their payment obligations (see Wells Fargo Bank v DasKarla, 71 AD3d 1006 [2010]; see also Baron Assoc., LLC v Garcia Group Enters., Inc., 96AD3d 793 [2012]; ArgentMtge. Co., LLC v Mentesana, 79 AD3d 1079, 1080 [2010]). In response, theappellants failed to raise a triable issue of fact relating to any bona fide defense toforeclosure (see Wells Fargo Bank v Das Karla, 71 AD3d at 1006). Theconclusory and unsubstantiated assertions in the affidavit of the defendant BenjaminRingel, submitted in opposition to the motion, did not raise a triable issue of fact as towhether the doctrines of unclean hands or promissory estoppel acted to bar theforeclosure [*2]action (see Baron Assoc., LLC vGarcia Group Enters., Inc., 96 AD3d at 793; Wells Fargo Bank v Hodge, 92 AD3d 775, 776 [2012]; Schwartz v Miltz, 77 AD3d723, 725 [2010]; cf.Golden Eagle Capital Corp. v Paramount Mgt. Corp., 88 AD3d 646 [2011]; First Union Natl. Bank vTecklenburg, 2 AD3d 575, 576-577 [2003]).
The Supreme Court providently exercised its discretion in denying the appellantsleave to amend the answer to assert two additional counterclaims. Leave to amend apleading should be "freely given absent prejudice or surprise" (Rosicki, Rosicki & Assoc., P.C. vCochems, 59 AD3d 512, 514 [2009]) and "[a] court should not examine themerits or legal sufficiency of the proposed amendment unless it is palpably insufficient orpatently devoid of merit on its face" (Rosicki, 59 AD3d at 514; see Greco v Christoffersen, 70AD3d 769 [2010]). "A determination whether to grant such leave is within theSupreme Court's broad discretion, and the exercise of that discretion will not be lightlydisturbed" (Greco v Christoffersen, 70 AD3d at 770 [internal quotation marksomitted]).
The allegations in the proposed counterclaims were palpably insufficient (see 805Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451 [1983]; Precision Mech. v Dormitory Auth.of State of N.Y., 5 AD3d 653, 654 [2004]; see generally Ruder & Finn vSeaboard Sur. Co., 52 NY2d 663, 670 [1981]).
The appellants' remaining contentions are without merit. Dillon, J.P., Dickerson,Chambers and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op32197(U).]