| US Bank, N.A. v Primiano |
| 2016 NY Slip Op 04405 [140 AD3d 857] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| US Bank, N.A., Respondent, v RichardPrimiano, Jr., et al., Defendants, and Elizabeth Primiano,Appellant. |
J.A. Sanchez-Dorta, New York, NY, for appellant.
Hinshaw & Culbertson, LLP, New York, NY (Schuyler B. Kraus and MargaretM. Breeden of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Elizabeth Primiano appeals froman order of the Supreme Court, Nassau County (Adams, J.), entered May 12, 2014, whichgranted the plaintiff's motion for summary judgment and to appoint a referee and, ineffect, denied her cross motion for leave to serve an amended answer to assert thedefense of lack of standing and for summary judgment dismissing the complaint insofaras asserted against her.
Ordered that the order is modified, on the law, on the facts, and in the exercise ofdiscretion, by (1) deleting the provision thereof granting the plaintiff's motion forsummary judgment and to appoint a referee, and substituting therefor a provisiondenying that motion, and (2) deleting the provision thereof, in effect, denying that branchof the appellant's cross motion which was for leave to serve an amended answer to assertthe defense of lack of standing, and substituting therefor a provision granting that branchof the cross motion; as so modified, the order is affirmed, with costs to the appellant.
CPLR 3025 (b) provides that leave to amend a pleading "shall be freely given."Thus, leave should be given where the amendment is neither palpably insufficient norpatently devoid of merit, and the delay in seeking amendment does not prejudice orsurprise the opposing party (seeHSBC Bank v Picarelli, 110 AD3d 1031, 1031-1032 [2013]; Aurora Loan Servs., LLC vDimura, 104 AD3d 796, 796-797 [2013]). Here, the defendant ElizabethPrimiano (hereinafter the defendant) waived the defense of lack of standing by failing toinclude it in her answer. Nonetheless, the plaintiff addressed standing in its motion forsummary judgment, and the defendant promptly cross-moved for leave to serve anamended answer. Any delay by the defendant in seeking leave to amend her answer didnot result in prejudice or surprise to the plaintiff. Moreover, the proposed amendmentwas neither palpably insufficient nor patently devoid of merit (see HSBC Bank vPicarelli, 110 AD3d at 1032). Accordingly, the Supreme Court improvidentlyexercised its discretion in denying that branch of the defendant's cross motion.
Inasmuch as there are questions of fact as to the plaintiff's standing to commence this[*2]action, the plaintiff's motion for summary judgmentshould have been denied.
The parties' remaining contentions are without merit. Balkin, J.P., Leventhal, Austinand Duffy, JJ., concur.