| HSBC Bank v Picarelli |
| 2013 NY Slip Op 07011 [110 AD3d 1031] |
| October 30, 2013 |
| Appellate Division, Second Department |
| HSBC Bank, as Trustee for the Holders of DeutscheALT-A Securities Mortgage Loan Trust, Series 2007-OA4 Mortgage Pass-ThroughCertificates, Appellant, v Maryann Picarelli et al., Respondents, et al.,Defendants. |
—[*1] David M. Harrison, Brooklyn, N.Y., for respondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Queens County (Markey, J.), entered August8, 2012, as granted that branch of the cross motion of the defendants Maryann Picarelliand Margaret Rappold which was for leave to serve and file an amended answer to asserta defense based on lack of standing.
Ordered that the order is affirmed insofar as appealed from, with costs.
Leave to amend a pleading "shall be freely given" (CPLR 3025 [b]), provided thatthe amendment is not palpably insufficient as a matter of law, does not prejudice orsurprise the opposing party, and is not patently devoid of merit (see Spodek v Neiss, 104 AD3d758 [2013]; Padin v City ofNew York, 103 AD3d 614, 615 [2013]; Nisari v Ramjohn, 85 AD3d 987, 990 [2011]; Consolidated Payroll Servs., Inc. vBerk, 18 AD3d 415 [2005]). The decision of whether to allow an amendment iscommitted "almost entirely to the [motion] court's discretion" (Murray v City of NewYork, 43 NY2d 400, 405 [1977] [internal quotation marks omitted]; seeEdenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Aronov v Regency Gardens Apt.Corp., 15 AD3d 513, 514 [2005]). "Mere lateness is not a barrier to theamendment. It must be lateness coupled with significant prejudice to the other side, thevery elements of the laches doctrine" (Edenwald Contr. Co. v City of New York,60 NY2d at 959 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v Dimura, 104 AD3d 796,796 [2013]; US Bank, N.A. vSharif, 89 AD3d 723, 724 [2011]; Rodriguez v Panjo, 81 AD3d 805, 806 [2011]).
Although the defendants Maryann Picarelli and Margaret Rappold (hereinaftertogether the homeowner defendants) waived the defense of lack of standing by failing toassert it as an affirmative defense in their initial answer (see CPLR 3211 [e]), thisdefense can nevertheless be interposed by leave of court pursuant to CPLR 3025 (b) solong as the amendment does not cause the other party prejudice or surprise resultingdirectly from the delay (see U.S. Bank, N.A. v Sharif, 89 AD3d at 724; Ricchezza v Metropolitan Transp.Auth., 79 AD3d 998 [2010]; Complete Mgt., Inc. v Rubenstein, 74 AD3d 722, 723[2010]; Nunez vMousouras, 21 AD3d 355, 356 [2005]; Endicott Johnson Corp. v KonikIndus., 249 AD2d 744 [1998]). Since the proposed amendment did not result in anyprejudice or surprise to the plaintiff and was not palpably insufficient or patently devoidof merit, the Supreme Court providently exercised its discretion in granting that branchof the homeowner defendants' [*2]cross motion whichwas pursuant to CPLR 3025 (b) for leave to amend their answer to add a defense basedon lack of standing.
The plaintiff's remaining contentions either are without merit or not properly beforethe Court on this appeal. Mastro, J.P., Angiolillo, Leventhal and Chambers, JJ.,concur. [Prior Case History: 36 Misc 3d 1218(A), 2012 NY Slip Op 51387(U).]