Flagstar Bank, FSB v Davis

Flagstar Bank, FSB v Davis 2019 NY Slip Op 08655 Decided on December 4, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 4, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI, JJ.
2016-04057
(Index No. 16906/13)

[*1]Flagstar Bank, FSB, respondent,

v

Camille Davis, appellant, et al., defendants.

Stephen C. Silverberg, PLLC, Uniondale, NY, for appellant.

Davidson Fink LLP, Rochester, NY (Richard N. Franco of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Camille Davis appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated December 21, 2015. The order, insofar as appealed from, denied those branches of that defendant's cross motion which were for leave to amend her answer to assert the affirmative defenses of failure to state a cause of action and fraud on the court, and a counterclaim for disgorgement of profits.

ORDERED that the order is affirmed insofar as appealed from, with costs.

"A party may amend his or her pleading . . . at any time by leave of court" (CPLR 3025[b]). "Applications to amend pleadings are within the sound discretion of the court" (Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Sudit v Labin, 148 AD3d 1073, 1076). "[L]eave to amend a pleading should be freely given (see CPLR 3025[b]), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit" (Bank of N.Y. v C & L Interiors, Inc., 168 AD3d 800, 802 [internal quotation marks omitted]; see Notaro v Performance Team, 161 AD3d 1093, 1095; Matter of Rhoda v Avery, 155 AD3d 737, 738). Here, the Supreme Court providently exercised its discretion in denying those branches of the cross motion of the defendant Camille Davis (hereinafter the defendant) which were for leave to amend her answer to assert the affirmative defenses of failure to state a cause of action and fraud on the court, and a counterclaim for disgorgement of profits, as those proposed amendments were palpably insufficient or devoid of merit.

The defendant's remaining contentions are either raised for the first time on appeal and not properly before this Court, or without merit.

MASTRO, J.P., ROMAN, CONNOLLY and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court