TRUST FSB 2013 13 v. (Appeal No. 3.) (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously vacated, the complaint is reinstated, and the order entered October 20, 2017 is modified on the law by denying the cross motion of defendant Johnny L. Rice for leave to amend the answer, and as modified the order is affirmed without costs.

Memorandum: In appeal No. 1, plaintiff appeals from an order (October order) that, insofar as appealed from, granted the cross motion of Johnny L. Rice (defendant) for leave to amend the answer. In appeal No. 2, plaintiff appeals from an amended order that denied plaintiff's cross motion for leave to renew and reargue its opposition to defendant's cross motion. In appeal No. 3, plaintiff appeals from an amended order that, inter alia, granted defendant's motion for summary judgment dismissing the complaint.

Initially, we conclude that appeal No. 2 must be dismissed because, although plaintiff denominated its cross motion as one for leave to renew and reargue, the cross motion was actually one for leave to reargue only (see MidFirst Bank v. Storto, 121 A.D.3d 1575, 1575, 993 N.Y.S.2d 854 [4th Dept. 2014]; Empire Ins. Co. v. Food City, 167 A.D.2d 983, 983, 562 N.Y.S.2d 5 [4th Dept. 1990]), and it is well settled that no appeal lies from an order denying such a motion or cross motion (see Matter of Kleinbach v. Cullerton, 151 A.D.3d 1686, 1687, 56 N.Y.S.3d 733 [4th Dept. 2017]; Britt v. Buffalo Mun. Hous. Auth., 115 A.D.3d 1252, 1252, 982 N.Y.S.2d 649 [4th Dept. 2014]). Furthermore, we note that the appeal from the final, amended order in appeal No. 3 brings up for review the propriety of the October order, and therefore the appeal from that order in appeal No. 1 must also be dismissed (see Burke v. Crosson, 85 N.Y.2d 10, 15, 623 N.Y.S.2d 524, 647 N.E.2d 736 [1995]; Matter of White v. Byrd-McGuire, 163 A.D.3d 1413, 1413-1414, 81 N.Y.S.3d 692 [4th Dept. 2018]; see generally CPLR 5501 [a] [1]).

In appeal No. 3, we agree with plaintiff that Supreme Court erred in granting defendant's cross motion for leave to amend the answer. CPLR 3025 (b) provides, in relevant part, that “[a] party may amend his or her pleading ․ at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just” (see Fanelli v. Upstate Cerebral Palsy, Inc., 171 A.D.3d 1478, 1479, 97 N.Y.S.3d 897 [4th Dept. 2019]). Where a complaint or answer has already been stricken or dismissed, however, a court cannot permit amendment of the pleading because there is no pleading before the court to be amended (see Tanner v. Stack, 176 A.D.3d 429, 429, 107 N.Y.S.3d 660 [1st Dept. 2019]; Deutsche Bank Natl. Trust Co. v. James, 164 A.D.3d 467, 469, 81 N.Y.S.3d 532 [2d Dept. 2018]; Wells Fargo Bank, N.A. v. Fanto, 146 A.D.3d 1012, 1012, 45 N.Y.S.3d 546 [2d Dept. 2017]). Here, there is no dispute that, at the time of defendant's cross motion, the answer had already been stricken pursuant to a prior order of the court (see Tanner, 176 A.D.3d at 429, 107 N.Y.S.3d 660; Deutsche Bank Natl. Trust Co., 164 A.D.3d at 469, 81 N.Y.S.3d 532; Wells Fargo Bank, N.A., 146 A.D.3d at 1012, 45 N.Y.S.3d 546). We therefore modify the October order accordingly.

In light of our determination, plaintiff's remaining contentions are academic.