Opinion
01-25-2017
WELLS FARGO BANK, N.A., respondent, v. Melody FANTO, appellant, et al., defendants.
Steven Rabitz, Massapequa, NY, for appellant. Hogan Lovells US, LLP, New York, NY (Sean Marotta, David Dunn, and Chava Brandriss of counsel), for respondent.
Steven Rabitz, Massapequa, NY, for appellant.
Hogan Lovells US, LLP, New York, NY (Sean Marotta, David Dunn, and Chava Brandriss of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action to foreclose a mortgage, the defendant Melody Fanto appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered April 20, 2015, which denied her motion for leave to amend her answer.
ORDERED that the order is affirmed, with costs.
The defendant Melody Fanto (hereinafter the defendant) executed, in favor of the plaintiff, a note in the sum of $293,500, and a mortgage on residential property, securing the note. On February 14, 2011, the plaintiff commenced this action to foreclose the mortgage, and the defendant served an answer, which did not raise the defense of lack of standing. The plaintiff moved, inter alia, for summary judgment on the complaint and to strike the defendant's answer. By order entered December 30, 2013, the Supreme Court granted those branches of the plaintiff's motion. Subsequently, the defendant moved solely for leave to amend her answer to assert numerous counterclaims and affirmative defenses, including lack of standing. The court denied the motion.
The Supreme Court properly denied the defendant's motion for leave to amend her answer, since the court previously granted the plaintiff's motion, inter alia, to strike the answer, and therefore, there was no answer before the court to amend (see Panagoulopoulos v. Ortiz, 143 A.D.3d 792, 38 N.Y.S.3d 807 ; Prinz v. New York State Elec. & Gas, 82 A.D.3d 1199, 920 N.Y.S.2d 914 ; Kazakhstan Inv. Fund v. Manolovici, 2 A.D.3d 249, 250, 768 N.Y.S.2d 324 ). In any event, a motion for leave to amend a pleading should not be granted where prejudice or surprise to the opposing party results directly from the movant's delay (see U.S.
Bank N.A. v. Lomuto, 140 A.D.3d 852, 854–855, 35 N.Y.S.3d 123 ; South Point, Inc. v. Rana, 139 A.D.3d 935, 936, 30 N.Y.S.3d 710 ; HSBC Bank USA v. Philistin, 99 A.D.3d 667, 667–668, 952 N.Y.S.2d 83 ; see generally CPLR 3025[b] ; Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238 ). Here, the defendant's extensive delay would have resulted in unfair surprise and prejudice to the plaintiff (see U.S. Bank N.A. v. Lomuto, 140 A.D.3d at 854–855, 35 N.Y.S.3d 123 ; South Point, Inc. v. Rana, 139 A.D.3d at 936, 30 N.Y.S.3d 710; HSBC Bank USA v. Philistin, 99 A.D.3d at 667–668, 952 N.Y.S.2d 83 ).
In light of our determination, we need not reach the defendant's remaining contentions.
Accordingly, the Supreme Court properly denied the defendant's motion.