Opinion
91140/2004.
Decided February 16, 2010.
Goldberg Rimberg Friedlander, New York, NY, Plaintiff's Counsel.
David Hernandez, Brooklyn, NY, Defendant's Counsel.
In this action to recover on a promissory note, which requires the payment of interest in the amount of twenty-four percent (24%) per annum, defendant Milta Torres, as Executrix of the Estate of Jon David Sherry, as Trustee of the Sherry Family Trust, moves to amend her answer to include the defense of usury; and upon such amendment, for summary judgment dismissing the complaint on the ground that the promissory note is usurious. Defendant also seeks summary judgment dismissing the complaint on the ground that Jon David Sherry, the person who signed the note on behalf of the Sherry Family Trust, lacked actual or apparent authority to make the note.
In opposition to the motion, plaintiff contends that defendant's motion to amend should be denied since the defendant was aware of the facts upon which the motion is predicated from the inception of the litigation and failed to offer any excuse for her delay in seeking leave to amend. Plaintiff further contends, inter alia, that the amendment is devoid of merit pursuant to the doctrine of estoppel in pais, which estops a borrower from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction ( see e.g., Seidel v. 18 East 17th Street Owners, Inc., 79 NY2d 735, 743). Plaintiff maintains that she had a special relationship with Mr. Sherry, an attorney, and that through that relationship, he induced her to rely on the legality of the note. Finally, plaintiff contends that there is no merit to defendant's claim that Mr. Sherry lacked actual or apparently authority to bind the Trust to the promissory note. Mr. Sherry is now deceased.
While leave to amend a pleading shall be freely granted ( see, CPLR 3025[b]), a motion to amend is committed to the broad discretion of the trial court ( see, Edenwald Contr. Co. v. City of New York, 60 NY2d 957; Kramer Sons v. Facilities Dev. Corp., 135 AD2d 942 [3d Dept, 1987]; Fulford v. Baker Perkins, 100 AD2d 861 [2nd Dept, 1984]), and in exercising its discretion, the trial court should consider how long the amending party was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay is offered, and whether prejudice would result therefrom ( see, Branch v. Abraham Strauss Dept. Store, 220 AD2d 474, 475 [ 2nd Dept, 1995]; Pellegrino v. New York City Tr. Auth., 177 AD2d 554, 557 [ 2nd Dept, 1991]).
Here, the facts upon which defendant's motion to amend is based must have been known to the her at the time she interposed her answer, which was almost five years before she made the instant motion. Defendant offered no excuse for her delay. Moreover, Plaintiff has prepared her case in response to the original answer served by the defendant ( see Rose v. Velletri, 202 AD2d 566 [2d Dept, 1994]; F.G.L. Knitting Mills, Inc. v. 1087 Flushing Property, Inc., 191 AD2d 533 [2d Dept, 1993]) and has already testified at an examination before trial not knowing the applicability of the doctrine of estoppel in pais might be an issue.
At this juncture, the Court finds that plaintiff would be prejudiced if she would now have to prove the applicability of the doctrine of an estoppel in pais in response to a defense of usury. Accordingly, the Court holds that it would be an imprudent exercise of discretion to permit defendant to amend her answer at this time ( see Haller v. Lopane, 305 AD2d 370 [2nd Dept, 2003]; Romeo v. Arrigo, 254 AD2d 270, 271 [2nd Dept, 1998]; Mohammed by Ahmad v. City of New York, 242 AD2d 321, 322 [2nd Dept, 1997]). Since defendant's motion for leave to amend is being denied, defendant's motion for summary judgment dismissing the complaint on the ground that the promissory note is usurious must also be denied.
Turning to the other aspect of defendant's motion for summary judgment, defendant's submissions did not demonstrate as a matter of law that Mr. Sherry lacked actual or apparent authority to bind the Trust to the promissory note. Accordingly, that aspect of the motion is denied regardless of the sufficiency of plaintiff's opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853)
Accordingly, it is hereby
ORDERED that defendant's motion is in all respects DENIED.
This constitutes the decision and order of the Court.