Opinion
November 13, 1995
Appeal from the Supreme Court, Westchester County (Fredman, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment (a) awarding it a judgment of foreclosure and sale, (b) dismissing the affirmative defense of the answering defendants, and (c) dismissing the counterclaims of the defendants Primrose Development Corp., David Cioccolanti, and Joseph Cioccolanti are granted, the cross motion of the defendant Primose Development Corp. is denied, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.
The Supreme Court erred in denying that branch of the plaintiff's motion which was for summary judgment awarding it a judgment of foreclosure and sale. The plaintiff, as assignee of the Federal Deposit Insurance Corporation, established its case as a matter of law through the production of the mortgage and the unpaid note (see, LBV Props. v Greenport Dev. Co., 188 A.D.2d 588; Metropolitan Distrib. Servs. v DiLascio, 176 A.D.2d 312).
The defendant Primrose Development Corp. (hereinafter Primrose) failed to raise any question of fact as to its default on the mortgage (see, LBV Props. v Greenport Dev. Co., supra). Those affirmative defenses and counterclaims which are premised on an alleged oral agreement to provide future financing are meritless under Federal law (see, 12 U.S.C. § 1823 [e]; Langley v Federal Deposit Ins. Corp., 484 U.S. 86; D'Oench, Duhme Co. v Federal Deposit Ins. Corp., 315 U.S. 447) and State law (see, Bank of Suffolk County v Kite, 49 N.Y.2d 827). In addition, the assertion that the original lender and Primrose were engaged in a joint venture is meritless as well (see, Home Sav. Bank v Arthurkill Assocs., 173 A.D.2d 776; Ramirez v Goldberg, 82 A.D.2d 850).
Assuming, without deciding, that the plaintiff should be denied Federal holder-in-due-course status, and that it is therefore not immune from personal defenses and counterclaims, we have examined each such defense and counterclaim not based on the alleged oral agreement, and have determined that they are insufficient to defeat the plaintiff's motion for summary judgment dismissing those affirmative defenses and counterclaims. Thus, for example, the defenses of usury, duress, and the failure to join other parties are unavailing here (see, General Obligations Law § 5-521; Grubel v Union Mut. Life Ins. Co., 54 A.D.2d 686; Marine Midland Bank v Freedom Rd. Realty Assocs., 203 A.D.2d 538).
Accordingly, it was error not to have granted those branches of the plaintiff's motion which were for summary judgment awarding it a judgment of foreclosure and sale and dismissing the affirmative defenses and counterclaims.
The Supreme Court also erred in granting Primrose leave to amend its answer. Although leave to amend should be freely given, a motion for leave to amend should be denied if, as is the case here, the substance of the proposed pleading lacks merit (see, Crimmins Contr. Co. v City of New York, 74 N.Y.2d 166). Even if, as Primrose claims, its accountant disclosed to the plaintiff unspecified secret or confidential information, no cognizable equitable or legal defense or counterclaim against the plaintiff was asserted. Primrose was in default long before any alleged disclosures were made, and it could not have been damaged by the plaintiff's exercise of its right, as owner of the note and mortgage, to commence this foreclosure action (see, Marton Assocs. v Vitale, 172 A.D.2d 501). Balletta, J.P., Miller, O'Brien and Copertino, JJ., concur.