Opinion
2016-08878, Index No. 9994/12.
11-15-2017
EMIGRANT SAVINGS BANK, as Assignee of Emigrant Mortgage Company, Inc., Appellant, v. Hyergene F. WALTERS, as Executrix of the Estate of Glovern Monia Blair, et al., Defendants.
Borchert & LaSpina, P.C., Whitestone, NY (Helmut Borchert and Edward A. Vincent of Counsel), for appellant.
Borchert & LaSpina, P.C., Whitestone, NY (Helmut Borchert and Edward A. Vincent of Counsel), for appellant.
Appeal from an order of the Supreme Court, Kings County (Debra Silber, J.), dated June 3, 2016. The order denied the plaintiff's unopposed motion for leave to serve and file a supplemental and amended summons and complaint.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the plaintiff's motion for leave to serve and file a supplemental and amended summons and complaint is granted.
In this mortgage foreclosure action, the plaintiff moved for leave to serve and file a supplemental and amended summons and complaint in order to add certain parties as defendants and assert a cause of action to quiet title to the mortgaged premises pursuant to RPAPL 1501. The Supreme Court denied the plaintiff's motion, concluding, in essence, that a mortgagee could not maintain a cause of action to quiet title.
In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted "unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 ; see CPLR 3025[b] ; Capezzano Constr. Corp. v. Weinberger, 150 A.D.3d 811, 811, 51 N.Y.S.3d 893 ; Jablonski v. Jakaitis, 85 A.D.3d 969, 971, 926 N.Y.S.2d 137 ). Moreover, pursuant to CPLR 1003, "[p]arties may be added at any stage of the action by leave of court" (see Jaramillo v. Asconcio, 151 A.D.3d 947, 949, 58 N.Y.S.3d 412 ; Public Adm'r of Kings County v. McBride, 15 A.D.3d 558, 559, 791 N.Y.S.2d 570 ).
Here, the plaintiff's proposed cause of action was not "palpably insufficient or patently devoid of merit" ( Lucido v. Mancuso, 49 A.D.3d at 222, 851 N.Y.S.2d 238 ). RPAPL 1501 provides that any person who "claims an estate or interest in real property' may ‘maintain an action against any other person ... to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, ... the defendant might make’ " ( Deramo v. Laffey, 149 A.D.3d 800, 802, 52 N.Y.S.3d 119, quoting RPAPL 1501[1] ; see Wellington v. Financial Freedom Acquisition LLC, 132 A.D.3d 506, 506–507, 18 N.Y.S.3d 33 ; ABN AMRO Mtge. Group, Inc. v. Stephens, 91 A.D.3d 801, 939 N.Y.S.2d 70 ). Pursuant to RPAPL 1501(5), the interest held by any mortgagee of real property is an "interest in real property" as that phrase is used in article 15 (see Dano v. American Friends of Boys Town Jerusalem, Inc., 85 A.D.2d 553, 452 N.Y.S.2d 840 ). Thus, contrary to the Supreme Court's determination, the plaintiff, as mortgagee of the subject premises, asserted a cause of action to quiet title pursuant to RPAPL 1501 based on its claim that the mortgage encumbered the entire premises because the mortgagor acquired title to the entire premises by adverse possession (see Pirrelli v. OCWEN Loan Servicing, LLC, 129 A.D.3d 689, 693, 12 N.Y.S.3d 110 ). Moreover, the plaintiff properly sought leave to amend the summons and complaint to add as defendants certain persons who might claim interests in the premises that are adverse to its own interest.
Accordingly, the Supreme Court should have granted the plaintiff's motion for leave to serve and file a supplemental and amended summons and complaint.
ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.