BANK TRUST v. WATKINS (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Zachary Watkins appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated April 20, 2022.  The order, insofar as appealed from, in effect, denied those branches of that defendant's motion which were pursuant to CPLR 3025(b) for leave to amend his answer and for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendant Zachary Watkins (hereinafter the defendant), among others, to foreclose a mortgage on real property.  The defendant interposed an answer, and thereafter moved, inter alia, for leave to amend the answer to assert an affirmative defense that the mortgage must be deemed satisfied in light of the alleged existence of a mortgage life insurance policy.  The defendant additionally sought summary judgment dismissing the complaint insofar as asserted against him, arguing that the plaintiff violated Banking Law § 6–l.  In an order dated April 20, 2022, the Supreme Court, among other things, in effect, denied those branches of the motion, and the defendant appeals.

Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Tavor v. Lane Towers Owners, Inc., 197 A.D.3d 584, 586, 153 N.Y.S.3d 52).  Here, the proposed amendment was palpably insufficient, and thus, the Supreme Court properly, in effect, denied that branch of the defendant's motion which was for leave to amend the answer.

RPAPL 1302(2) provides, in pertinent part, that “[i]t shall be a defense to an action to foreclose a mortgage that the terms of the home loan or the actions of the lender violate any provision of,” among other things, Banking Law § 6–l (see Wells Fargo Bank, N.A. v. Edwards, 186 A.D.3d 1455, 1457, 129 N.Y.S.3d 20).  Banking Law § 6–l “imposes limitations and prohibits certain ‘practices for high-cost home loans’ ” (Aries Fin., LLC v. 12005 142nd St., LLC, 127 A.D.3d 900, 901, 7 N.Y.S.3d 372, quoting Banking Law § 6–l[2]).  Under Banking Law § 6–l(g)(ii), “[a] home loan is a ‘high-cost home loan’ if, among other things, the total points and fees charged exceed five percent of the total loan amount” (Silver v. CitiMortgage, Inc., 162 A.D.3d 812, 813, 79 N.Y.S.3d 221;  see Banking Law § 6–l[1][d], [g][ii]).

Here, contrary to the defendant's contention, he failed to demonstrate, prima facie, that the total points and fees charged exceeded five percent of the total loan amount, and thus, he failed to demonstrate, prima facie, that the subject loan was a “high-cost home loan” (Banking Law § 6–l[d];  see Goshen Mtge., LLC v. Giertl, 180 A.D.3d 651, 654, 115 N.Y.S.3d 694).  Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

The defendant's remaining contention is not properly before this Court as it is improperly raised for the first time on appeal.

IANNACCI, J.P., WOOTEN, WARHIT and WAN, JJ., concur.