| Wells Fargo Bank, N.A. v Morgan |
| 2016 NY Slip Op 04043 [139 AD3d 1046] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Appellant, v DialaMorgan, Respondent, et al., Defendants. |
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and LeahRabinowitz Lenz of counsel), for appellant.
R. David Marquez, P.C., Mineola, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Queens County (Grays, J.), entered April 30, 2014, which denied thatbranch of its motion which was for summary judgment on the complaint and granted thecross motion of the defendant Diala Morgan for leave to amend her answer pursuant toCPLR 3025 (b), inter alia, to add the proposed affirmative defense of lack of standing,and to deem the proposed amended answer served and filed nunc pro tunc, and to dismissthe complaint insofar as asserted against her pursuant to CPLR 3211 (a) on the groundthat the plaintiff lacked standing to commence the action.
Ordered that order is reversed, on the law, on the facts, and in the exercise ofdiscretion, with costs, that branch of the plaintiff's motion which was for summaryjudgment on the complaint is granted, and the cross motion of the defendant DialaMorgan is denied.
On January 23, 2007, the defendant Diala Morgan (hereinafter the defendant)executed a note in the principal sum of $417,000 in connection with her purchase ofcertain real property in Far Rockaway. She also executed a mortgage on the property tosecure the debt. The defendant thereafter defaulted in July 2007. The plaintiff acceleratedthe debt and, alleging that it was authorized to do so, commenced this foreclosure actionon December 18, 2007. The defendant timely served a pro se answer in which sheadmitted the material allegations of the complaint and set forth a loss of employment asher only defense. The case was then litigated over the course of several years, duringwhich the parties engaged in motion practice and various conferences. At no time duringthis period did the defendant ever contest the legitimacy of the debt, her nonpayment ofsame, or the plaintiff's authority to seek foreclosure in connection therewith.
Thereafter, on August 19, 2013, the plaintiff moved, inter alia, for summaryjudgment on the complaint. The defendant, now represented by counsel, cross-moved inresponse, seeking for the first time in the action, inter alia, leave to amend her answer todeny the allegations of the complaint, to assert 29 new arguments, including lack ofstanding, as affirmative defenses or counterclaims in the action, to deem the amendedanswer served and filed nunc pro tunc, and to dismiss the complaint insofar as assertedagainst her based on the newly asserted defense of lack of standing. The plaintiffopposed the cross motion, noting that it would be substantially prejudiced if theamendment were to be granted after such an inordinately long and unexplained period ofdelay. The Supreme Court denied that branch of the plaintiff's motion which was forsummary judgment on the complaint, and granted those branches of the defendant's crossmotion which were for leave [*2]to amend the answerand to dismiss the complaint insofar as asserted against her based on the newly raiseddefense of lack of standing. We reverse.
"Leave to amend the pleadings 'shall be freely given' absent prejudice or surpriseresulting directly from the delay" (McCaskey, Davies & Assoc. v New York CityHealth & Hosps. Corp., 59 NY2d 755, 757 [1983], quoting CPLR 3025 [b]; see Kimso Apts., LLC vGandhi, 24 NY3d 403 [2014]). Here, the plaintiff established that it wouldsuffer undue prejudice as the result of the defendant's unexplained delay of almost sixyears in seeking leave to amend her answer to contest the allegations of the complaintand to insert a multitude of new issues into the case (see Rose v Velletri, 202AD2d 566 [1994]). Moreover, the defendant's delay deprived the plaintiff of anopportunity to promptly investigate the defense of lack of standing and the numerousother boilerplate defenses sought to be asserted in the amended answer and to addressany alleged defects in its case at a point when they might have been timely cured (see HSBC Bank USA vPhilistin, 99 AD3d 667 [2012]). Accordingly, under these circumstances, theSupreme Court improvidently exercised its discretion in granting the defendant's crossmotion, inter alia, for leave to amend the answer and to dismiss the complaint for lack ofstanding.
The Supreme Court further erred in denying that branch of the plaintiff's motionwhich was for summary judgment on the complaint. The plaintiff established its primafacie entitlement to judgment as a matter of law in this foreclosure action by submittingthe mortgage, the unpaid note, and evidence of the defendant's default (see Aurora Loan Servs., LLC vEnaw, 126 AD3d 830 [2015]; Plaza Equities, LLC v Lamberti, 118 AD3d 688 [2014]; U.S. Bank N.A. v Denaro, 98AD3d 964 [2012]). The defendant's submissions in opposition to the motion wereinsufficient to raise a triable issue of fact (see Washington Mut. Bank, F.A. v O'Connor, 63 AD3d832 [2009]). Mastro, J.P., Rivera, Austin and LaSalle, JJ., concur.