Opinion
2013-11-27
COUNTRYWIDE HOME LOANS, INC., respondent, v. Kirk GIBSON, et al., defendants, Brett Jones, appellant.
Regina Felton, Brooklyn, N.Y., for appellant. Fidelity National Law Group, New York, N.Y. (Anthony F. Prisco of counsel), for respondent.
Regina Felton, Brooklyn, N.Y., for appellant. Fidelity National Law Group, New York, N.Y. (Anthony F. Prisco of counsel), for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to foreclose a mortgage, the defendant Brett Jones appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated May 22, 2012, which granted the plaintiff's motion to restore the action to the active calendar, and pursuant to CPLR 3025 for leave to amend the complaint so as to assert certain additional causes of action.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the plaintiff's motion which was to restore this action to the active calendar. CPLR 3404 does not apply to this pre-note of issue action ( see Rakha v. Pinnacle Bus Servs., 98 A.D.3d 657, 658, 949 N.Y.S.2d 769; Matter of Butler v. Board of Trustees N.Y. City Fire Dept. Pension Fund, 91 A.D.3d 867, 868, 936 N.Y.S.2d 908; Varricchio v. Sterling, 86 A.D.3d 535, 536, 926 N.Y.S.2d 320; Mitskevitch v. City of New York, 78 A.D.3d 1137, 1138, 911 N.Y.S.2d 662; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 725 N.Y.S.2d 57). Further, there was neither a 90–day notice pursuant to CPLR 3216, nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 ( see Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d 17, 970 N.Y.S.2d 229; Rakha v. Pinnacle Bus Servs., 98 A.D.3d at 658, 949 N.Y.S.2d 769; Mitskevitch v. City of New York, 78 A.D.3d at 1138, 911 N.Y.S.2d 662).
Moreover, the Supreme Court correctly granted that branch of the plaintiff's motion which was pursuant to CPLR 3025 for leave to amend the complaint so as to assert certain additional causes of action. “Pursuant to CPLR 3025(b), leave to amend a pleading should be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” (Rechler Equity B–1, LLC v. AKR Corp., 98 A.D.3d 496, 498, 949 N.Y.S.2d 457 [internal quotation marks omitted]; see Finkelstein v. Lincoln Natl. Corp., 107 A.D.3d 759, 761, 967 N.Y.S.2d 733; Spodek v. Neiss, 104 A.D.3d 758, 759, 961 N.Y.S.2d 251; Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238). Here, the proposed amendments were neither palpably insufficient nor patently devoid of merit, and there was no evidence that the amendments would prejudice or surprise the appellant.