| South Point, Inc. v Rana |
| 2016 NY Slip Op 03870 [139 AD3d 935] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| South Point, Inc., Respondent, v Allah R. Rana,Appellant, et al., Defendants. |
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Daniel Kogan, Ozone Park, NY (Joseph F. Kasper of counsel), for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Andrew Morganstern ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Allah R. Rana appeals from ajudgment of foreclosure and sale of the Supreme Court, Queens County (McDonald, J.),entered September 18, 2014, which, upon an order of the same court dated January 13,2009, granting the plaintiff's motion, inter alia, for summary judgment on the complaint,and an order of the same court dated March 13, 2014, inter alia, denying his cross motionfor leave to serve an amended answer, confirmed a referee's report and directed the saleof the subject property.
Ordered that the judgment is affirmed, with costs.
In this action to foreclose a mortgage, the defendant Allah R. Rana (hereinafter thedefendant) did not raise the issue of the plaintiff's standing to commence the action byway of specific denials in his answer, by raising lack of standing as an affirmativedefense, or by making a pre-answer motion to dismiss based on lack of standing.Accordingly, he waived the issue (see CPLR 3018 [b]; HSBC Bank USA, NA v Halls,136 AD3d 752, 753 [2016];JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 779 [2015]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 240 [2007]; cf. Bank of Am., N.A. v Paulsen, 125 AD3d 909, 910[2015]; US Bank N.A. vFaruque, 120 AD3d 575, 576 [2014]).
The Supreme Court did not improvidently exercise its discretion in denying thedefendant's cross motion for leave to serve an amended answer to raise the defense oflack of standing. A motion for leave to amend a pleading should be freely granted in theabsence of prejudice or surprise resulting directly from the delay, unless the amendmentwould be palpably insufficient or patently devoid of merit (see CPLR 3025 [b];HSBC Bank USA vPhilistin, 99 AD3d 667, 667 [2012]; Lucido v Mancuso, 49 AD3d 220, 229 [2008]). Here, theplaintiff's motion for summary judgment was granted in 2009, and the defendant did notseek to raise the issue of lack of standing until almost five years later. Thus, thedefendant's delay in seeking to raise the defense that he had waived by failing to raise itin his answer would have resulted in unfair surprise to the plaintiff (see HSBC BankUSA v Philistin, 99 AD3d at 668).
The defendant failed to provide a record that is adequate for us to conductmeaningful review of his remaining contentions (see Cohen v Wallace & Minchenberg, 39 AD3d 689,689-690 [2007]). Rivera, J.P., Dillon, Balkin and Sgroi, JJ., concur.