NEWTEK SMALL BUSINESS FINANCE LLC v. Elias S. Wiesenfeld, et al., appellants. (2026)

DECISION & ORDER

In an action, inter alia, to foreclose certain mortgages, the defendants Elias S. Wiesenfeld, Rachel Wiesenfeld, and 86 Hewes Street, LLC, appeal from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 22, 2023, and (2) an order of the same court dated September 19, 2023.  The order dated May 22, 2023, granted the plaintiff's motion for leave to amend the complaint and denied those defendants’ cross-motion pursuant to CPLR 3211(a) and 306–b to dismiss the complaint insofar as asserted against them.  The order dated September 19, 2023, denied those defendants’ motion for leave to renew and reargue their opposition to the plaintiff's prior motion for leave to amend the complaint and their prior cross-motion pursuant to CPLR 3211(a) and 306–b to dismiss the complaint insofar as asserted against them.

ORDERED that the order dated May 22, 2023, is affirmed;  and it is further,

ORDERED that the appeal from so much of the order dated September 19, 2023, as denied that branch of the motion of the defendants Elias S. Wiesenfeld, Rachel Wiesenfeld, and 86 Hewes Street, LLC, which was for leave to reargue their opposition to the plaintiff's prior motion for leave to amend the complaint and their prior cross-motion pursuant to CPLR 3211(a) and 306–b to dismiss the complaint insofar as asserted against them is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated September 19, 2023, is affirmed insofar as reviewed;  and it is further,

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

In April 2013, the plaintiff's predecessor-in-interest executed a loan agreement (hereinafter the 2013 agreement), obtaining, inter alia, a security interest and mortgage on four parcels of real property.  The 2013 agreement was guaranteed by, among others, Elias S. Wiesenfeld, Isaac Wiesenfeld, Rachel Wiesenfeld, Esther Wiesenfeld, 86 Hewes Street, LLC, and E & I Wise, LLC.

In September 2019, the plaintiff commenced this action against Elias S. Wiesenfeld, Rachel Wiesenfeld, and 86 Hewes Street, LLC (hereinafter collectively the original defendants), alleging that they had defaulted on their obligations under the 2013 agreement and seeking to foreclose on two of the four mortgaged properties.  In February 2023, the plaintiff moved for leave to amend the complaint, seeking, inter alia, to foreclose on all four mortgaged properties listed in the 2013 agreement and to add Isaac Wisenfeld, Esther Wisenfeld, and E & I Wise, LLC, as defendants.  The original defendants thereafter cross-moved pursuant to CPLR 3211(a)(8) and 306–b to dismiss the complaint insofar as asserted against them on the ground that they were not properly served with process.  In reply, the plaintiff submitted, for the first time, three unfiled affidavits of service, indicating that the summons and complaint were served on the original defendants in November 2019.  In an order dated May 22, 2023, the Supreme Court granted the motion and denied the cross-motion.  Thereafter, the original defendants moved, among other things, for leave to renew their prior cross-motion and their opposition to the plaintiff's prior motion.  In an order dated September 19, 2023, the court, inter alia, denied that branch of the motion.  The original defendants appeal from both orders.

The Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to amend the complaint.  “Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit” (Deutsche Bank Natl. Trust Co. v. Nissan, 230 A.D.3d 1105, 1108, 220 N.Y.S.3d 43 [internal quotation marks omitted];  see CPLR 3025[b];  Dray v. Staten Is. Univ. Hosp., 227 A.D.3d 664, 666, 210 N.Y.S.3d 275).  “Applications to amend pleadings are within the sound discretion of the court” (Dominge v. Dannenberg, 228 A.D.3d 729, 731, 213 N.Y.S.3d 405 [internal quotation marks omitted];  see U.S. Bank N.A. v. Singer, 192 A.D.3d 1182, 1185, 145 N.Y.S.3d 537).  “ ‘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’ ” (Cussick v. R.L. Baxter Bldg. Corp., 228 A.D.3d 614, 616, 213 N.Y.S.3d 146, quoting Ditech Fin., LLC v. Khan, 189 A.D.3d 1360, 1362, 139 N.Y.S.3d 293;  see Wilmington Sav. Fund Socy., FSB v. Sotomayor, 222 A.D.3d 702, 703, 202 N.Y.S.3d 193).  Here, the original defendants failed to establish that they would suffer prejudice or surprise as a result of the proposed amendment (see National Loan Invs., L.P. v. New Zion Church of the Apostolic Faith, Inc., 213 A.D.3d 860, 862, 184 N.Y.S.3d 771;  Wells Fargo Bank N.A. v. E & G Dev. Corp., 138 A.D.3d 986, 988, 31 N.Y.S.3d 121).

Moreover, the Supreme Court providently exercised its discretion in denying that branch of the original defendants’ motion which was for leave to renew their cross-motion pursuant to CPLR 3211(a)(8) and 306–b to dismiss the complaint insofar as asserted against them.  “A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion” (Sutton v. Syla, 223 A.D.3d 764, 766, 203 N.Y.S.3d 677 [internal quotation marks omitted];  see CPLR 2221).  Here, the original defendants failed to demonstrate that the purported new facts would have changed the prior determination (see MD Aminul Islam v. New York City Health & Hosps. Corp., 224 A.D.3d 819, 820–821, 206 N.Y.S.3d 134;  Ok Sun Chong v. Scheelje, 218 A.D.3d 691, 692, 192 N.Y.S.3d 668).

The parties’ remaining contentions are either not properly before this Court or academic in light of the foregoing.

BARROS, J.P., FORD, VENTURA and GOLIA, JJ., concur.