You are here: / / DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND...
, ,

DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE ANSWER DESPITE THE FAILURE TO MAKE A PRE-ANSWER MOTION TO DISMISS; THE DEFENDANT GETS A SECOND CHANCE TO ADD AN AFFIRMATIVE DEFENSE IF THE COURT GRANT’S LEAVE TO AMEND (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action should have been allowed to amend the answer:

… Supreme Court … should not have denied that branch of the defendant’s cross-motion which was for leave to amend his answer to assert an affirmative defense alleging lack of compliance with the condition precedent in the mortgage agreement requiring a notice of default. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b] …). Lateness alone is not a barrier to the amendment … . “‘It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'” … . Moreover, although a defense is generally waived under CPLR 3211(e) where not raised in an answer or made the subject of a motion to dismiss, it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) … . Wall St. Mtge. Bankers, Ltd. v Berquin, 2023 NY Slip Op 01025, Second Dept 2-22-23

Practice Point: The court can grant a defendant leave to amend an answer where the defendant did not make a pre-answer motion to dismiss on the ground which is the subject of the amendment. In other words, if the defendant fails to make a pre-answer motion to dismiss and the initial answer does not include the affirmative defense which could have been the basis of a motion to dismiss, the defendant gets another chance in an amendment of the answer by leave of court.

 

You might also like
FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).
Admissible Hearsay Concerning the Child’s Injuries and Evidence Relevant to the Child’s Motivation to Lie Should Not Have Been Excluded from the Neglect Proceeding
DEFENDANT OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED; THE LEASE DID NOT OBLIGATE THE LANDLORD TO MAINTAIN THE AREA AND NO STATUTORY VIOLATION WAS ALLEGED (SECOND DEPT).
THERE WAS NO REASONABLE VIEW OF THE EVIDENCE WHICH SUPPORTED THE JURY’S CONCLUSION THE BUS DRIVER WAS NOT NEGLIGENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
IN THIS FORECLOSURE PROCEEDING, PLAINTIFF BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; NO FOUNDATION FOR THE SUBMITTED BUSINESS RECORDS (SECOND DEPT).
THE RECORD DOES NOT REFLECT THAT MOTHER IN THIS CHILD-SUPPORT PROCEEDING WAS INFORMED OF HER RIGHT TO COUNSEL, HER RIGHT TO AN ADJOURNMENT TO RETAIN COUNSEL, OR HER WAIVER OF THAT RIGHT; NEW HEARING ORDERED (SECOND DEPT).
DURING THE FUNERAL PLAINTIFF (ALLEGEDLY) LEARNED DECEDENT’S BODY WAS NOT IN THE CASKET; THE LOSS OF SEPULCHER ACTION PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).
Law Office Failure Was Valid Excuse for Default—Answer Deemed Served in Absence of Cross Motion

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S COUNSEL EXPLAINED THAT THE RETURN DATE FOR DEFENDANT’S... IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF...