Opinion
2016–04057 Index No. 16906/13
12-04-2019
FLAGSTAR BANK, FSB, Respondent, v. Camille DAVIS, Appellant, et al., Defendants.
Stephen C. Silverberg, PLLC, Uniondale, NY, for appellant. Davidson Fink LLP, Rochester, N.Y. (Richard N. Franco, of counsel), for respondent.
Stephen C. Silverberg, PLLC, Uniondale, NY, for appellant.
Davidson Fink LLP, Rochester, N.Y. (Richard N. Franco, of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
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 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; see Edenwald Contr. Co. v. City of New York , 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 ; Sudit v. Labin , 148 A.D.3d 1073, 1076, 50 N.Y.S.3d 430 ). "[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 A.D.3d 800, 802, 92 N.Y.S.3d 322 [internal quotation marks omitted]; see Notaro v. Performance Team , 161 A.D.3d 1093, 1095, 77 N.Y.S.3d 700 ; Matter of Rhoda v. Avery , 155 A.D.3d 737, 738, 64 N.Y.S.3d 93 ). 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.