American Express Centurion Bank v Lopez

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American Express Centurion Bank v Lopez 2018 NY Slip Op 32613(U) October 12, 2018 Supreme Court, New York County Docket Number: 159355/2016 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/15/2018 12:21 PM NYSCEF DOC. NO. 36 INDEX NO. 159355/2016 RECEIVED NYSCEF: 10/15/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED PART IAS MOTION 2 INDEX NO. 159355/2016 Justice ------------------------------------------------------------------------------X AMERICAN EXPRESS CENTURION BANK, MOTION DATE 10/11/2018 Plaintiff, MOTION SEQ. NO. -v- 002 LUIS LOPEZ, Defendant. DECISION AND ORDER -----------------------------------------------------------------------~------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27, 28,29, 30, 31, 32, 33, 34, 35 were read on this motion to/for AMEND CAPTION/PLEADINGS · Upon the foregoing documents, it is ordered that the motion is granted without opposition. By order dated April 16, 2018 and entered the following day, this Court granted summary judgment in favor of plaintiff American Express Centurion Bank and as against defendant Luis Lopez in the amount of $32, 173.14, plus costs and disbursements as taxed by the Clerk of the Court, based on defendant's breach of a credit agreement. Doc. 19. Plaintiff now moves, in effect, pursuant to CPLR 3025 (b), to amend the caption to substitute American Express National Bank as plaintiff and for the entry of judgment in favor of the newly substituted plaintiff. The motion, which is unopposed, is granted. Pursuant to CPLR 3025(b ), a party may amend its pleading at any time by leave of court, and leave shall be freely given upon such terms as may be just. It is within the court's discretion whether to permit a party to amend its complaint. See Peach Parking Corp. v 345 W 401h Street. 1 LLC, 43 AD3d 82 (P Dept 2007). On a motion for leave to amend, a plaintiff need not establish 159355/2016 AMERICAN EXPRESS CENTURION vs. LOPEZ, LUIS A Motion No. 002 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 10/15/2018 12:21 PM NYSCEF DOC. NO. 36 INDEX NO. 159355/2016 RECEIVED NYSCEF: 10/15/2018 the merit of its proposed new allegations (see Lucinda_ v Mancuso, 49 AD3d 220, 227 [ 151 Dept 2008]), but must show that the proffered amendment is not palpably insufficient and not clearly devoid of merit. See MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 (15 1 Dept 2010); Pier 59 Studios, LP. v Chelsea Piers, L.P., 40 AD3d 363, 366 (1st Dept 2007). Here, plaintiffs counsel submits proof that plaintiff American Express Centurion Bank and American Express Bank, FSB consolidated under a single national bank charter. American Express Centurion Bank changed its status from a state bank to a federal bank, American Express National Bank, and American Express Bank, FSB merged into the new federal entity. Thus, plaintiff has established that American Express National Bank is the proper plaintiff herein. The lack of any prejudice to defendant which could arise from the substitution of. American Express National Bank as plaintiff is evident from the fact that his attorney was served with the instant motion and failed to oppose the same. See CPLR 3025 (b). Therefore, in light of the foregoing, it is hereby: ORDERED that the motion by plaintiff American Express Centurion Bank to amend the caption to substitute American Express National Bank as plaintiff is granted; and it is further ORDERED that the caption shall hereinafter read as follows: 2 of 159355/2016 AMERICAN EXPRESS CENTURION vs. LOPEZ, LUIS4A Mntinn tJn nn? Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 10/15/2018 12:21 PM NYSCEF DOC. NO. 36 INDEX NO. 159355/2016 RECEIVED NYSCEF: 10/15/2018 -----------------------------------------------------------------------------------AMERICAN EXPRESS NA TI ON AL BANK, Plaintiff, -against- LUIS A. LOPEZ, Defendant. And it is further, ORDERED that the order of this Court dated April 16, 2018 and entered April 17, 2018 shall otherwise remain in full force and effect; and it is further ORDERED that newly substituted plaintiff, American Express National Bank, shall have judgment against defendant Luis Lopez in the amount of $32, 173.14, plus costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly; and it is further 159355/2016 AMERICAN EXPRESS CENTURION vs. LOPEZ, LUIS A Motion No. 002 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/15/2018 12:21 PM NYSCEF DOC. NO. 36 INDEX NO. 159355/2016 RECEIVED NYSCEF: 10/15/2018 ORDERED that this constitutes the decision and order of the court. 10/12/2018 DATE CHECK ONE: § CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: D DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN D D OTHER REFERENCE 4 of 4 159355/2016 AMERICAN EXPRESS CENTURION vs. LOPEZ, LUIS A P:111n.o. A n.f .A

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