WILMINGTON SAVINGS FUND SOCIETY FSB v. Robert Thompson, nonparty-appellant. (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the appeal is from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered July 13, 2023.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for leave to amend the caption to substitute Robert Thompson for the defendant Clinton Thompson and to amend the complaint accordingly.

ORDERED that the appeal is dismissed except insofar as taken by Robert Thompson, as the other purported appealing parties are not aggrieved by the portion of the order appealed from (see Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is affirmed insofar as appealed from by Robert Thompson;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

As relevant here, in March 2006, the defendants Tyrone Thompson (hereinafter Tyrone) and Clinton Thompson (hereinafter Clinton), along with Sheila Thompson, executed a consolidated note in the principal sum of $315,000, which was secured by a consolidated mortgage on certain real property located in Queens Village.  In May 2011, the plaintiff's predecessor in interest commenced this action against Tyrone and Clinton, among others, to foreclose the consolidated mortgage.  After commencement of the action, by a series of assignments, the consolidated mortgage was assigned to the plaintiff.  As relevant here, in a prior order, the Supreme Court determined that Clinton “transferred his interest in the subject property to non-party Robert Thompson, on August 18, 2017.”

In October 2022, the plaintiff moved, among other things, for leave to amend the caption to substitute Robert Thompson (hereinafter Robert) as a defendant for Clinton and to amend the complaint accordingly.  Robert, among others, opposed the motion.  In an order entered July 13, 2023, the Supreme Court, inter alia, granted that branch of the motion.  This appeal ensued.

At the outset, the appeal purportedly taken by anyone other than Robert must be dismissed, since the other purported appealing parties are not aggrieved by the portion of the order appealed from (see Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132;  see also Pagan v. Jordan, 163 A.D.3d 978, 979, 82 N.Y.S.3d 132).

Moreover, we affirm the order entered July 13, 2023, insofar as appealed from by Robert.  “A party may amend [its] pleading ․ at any time by leave of court or by stipulation of all parties” (CPLR 3025[b]).  “ ‘Whether to grant leave to amend is within the trial court's discretion’ ” (First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d 639, 641, 182 N.Y.S.3d 274, quoting Johnson v. Ortiz Transp., LLC, 205 A.D.3d 696, 697, 165 N.Y.S.3d 735;  see U.S. Bank N.A. v. Cuesta, 208 A.D.3d 821, 172 N.Y.S.3d 638).  “ ‘[L]eave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party’ ” (First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d at 641, 182 N.Y.S.3d 274, quoting DLJ Mtge. Capital, Inc. v. David, 147 A.D.3d 1024, 1025, 48 N.Y.S.3d 234;  see U.S. Bank N.A. v. Cuesta, 208 A.D.3d at 822, 172 N.Y.S.3d 638).  “ ‘The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion’ ” (First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d at 641, 182 N.Y.S.3d 274, quoting Shields v. Darpoh, 207 A.D.3d 586, 587, 169 N.Y.S.3d 850).

Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to amend the caption to substitute Robert as a defendant for Clinton and to amend the complaint accordingly.  The opposition papers did not demonstrate that there was prejudice or surprise from the delay in seeking this amendment.  Moreover, the opposition papers did not demonstrate that this amendment was palpably insufficient or patently devoid of merit (see id.;  see also Shields v. Darpoh, 207 A.D.3d at 587–588, 169 N.Y.S.3d 850;  Ditech Fin., LLC v. Khan, 189 A.D.3d 1360, 1362, 139 N.Y.S.3d 293).  Further, “ ‘[n]o evidentiary showing of merit is required under CPLR 3025(b)’ ” (First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d at 641, 182 N.Y.S.3d 274, quoting Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238).

In light of our determination, we need not reach the parties' remaining contentions.

LASALLE, P.J., FORD, VOUTSINAS and LANDICINO, JJ., concur.