Opinion
2018–00727 Index No. 604864/16
05-20-2020
WELLS FARGO BANK, N.A., Respondent, v. Anthony R. SPATAFORE, et al., appellants, et al., Defendants.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellants. Friedman Vartolo LLP, New York, N.Y. (Oran Schwager of counsel), for respondent.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellants.
Friedman Vartolo LLP, New York, N.Y. (Oran Schwager of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Anthony R. Spatafore and Deborah M. Spatafore appeal from an order of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated November 29, 2017. The order denied those defendants' motion pursuant to CPLR 3025(b) for leave to amend their answer.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage. The defendants Anthony R. Spatafore and Deborah M. Spatafore (hereinafter together the defendants) interposed an answer. The defendants thereafter moved pursuant to CPLR 3025(b) for leave to amend their answer. The plaintiff opposed the motion. In an order dated November 29, 2017, the Supreme Court denied the defendants' motion. The defendants appeal. We affirm.
"In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading ‘are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " ( Myung Hwa Jang v. Mang, 164 A.D.3d 803, 804, 83 N.Y.S.3d 293, quoting Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 ; see CPLR 3025[b] ). The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion (see U.S. Bank Trust, N.A. v. Carter, 164 A.D.3d 539, 541–542, 83 N.Y.S.3d 1 ; Deutsche Bank Trust Co. Ams. v. Cox, 110 A.D.3d 760, 762, 973 N.Y.S.2d 662 ). "The determination to permit or deny amendment is committed to the sound discretion of the trial court" ( US Bank N.A. v. Murillo, 171 A.D.3d 984, 986, 98 N.Y.S.3d 115 ; see CPLR 3025[b] ).
Here, the plaintiff established, in opposition to the defendants' motion, that the proposed amendments to the defendants' answer were patently devoid of merit (see Ulster Sav. Bank v. Fiore, 165 A.D.3d 734, 735–736, 85 N.Y.S.3d 87 ; North Am. Sav. Bank, FSB v. Esposito–Como, 141 A.D.3d 706, 707, 35 N.Y.S.3d 491 ). Accordingly, the Supreme Court providently exercised its discretion in denying the defendants' motion for leave to amend their answer.
RIVERA, J.P., DILLON, MILLER and BARROS, JJ., concur.