US BANK NATIONAL ASSOCIATION v. MURILLO

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Supreme Court, Appellate Division, Second Department, New York.

US BANK NATIONAL ASSOCIATION, etc., Respondent, v. Soledad MURILLO, Appellant, et al., Defendants.

2015–11584

Decided: April 10, 2019

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ. R. David Marquez, P.C., Mineola, N.Y. (Leland L. Greene of counsel), for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (Cameron E. Grant, David Dunn, and Chava Brandriss of counsel), for respondent.

DECISION & ORDER

In an action to set aside a foreclosure sale and for declaratory relief, the defendant Soledad Murillo appeals from (1) an order of the Supreme Court, Nassau County (F. Dana Winslow, J.), entered August 3, 2015, and (2) an order of the same court entered September 8, 2015.  The orders, insofar as appealed from, granted that branch of the plaintiff's motion which was for leave to amend the complaint to add a cause of action to foreclose a mortgage.

ORDERED that the appeal from the order entered August 3, 2015, is dismissed, as the portion of the order appealed from was superseded by the order entered September 8, 2015;  and it is further,

ORDERED that the order entered September 8, 2015, is affirmed insofar as appealed from;  and it is further,

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

In 2005, the defendants Soledad Murillo and Luis Duque (hereinafter together the defendants) obtained a loan in the sum of $482,600 from BNC Mortgage, Inc., secured by a mortgage encumbering real property in Franklin Square.  In 2008, the plaintiff commenced a foreclosure action against, among others, the defendants, alleging that the note and mortgage had been assigned to it, and that the defendants had defaulted in the payments of the mortgage in November 2007.  A judgment of foreclosure and sale (hereinafter the judgment) was entered, and the subject property was sold to the plaintiff at a foreclosure sale in 2010.  Following a motion by the defendants to vacate the judgment and for a traverse hearing, the judgment was vacated in an order entered December 22, 2011, and the parties entered into a stipulation cancelling the notice of pendency in April 2012.

In September 2012, the plaintiff commenced this action to set aside the foreclosure sale and for a judgment declaring that the referee's deed is null and void.  Issue was joined by the defendants' answer, in which the defendants asserted several affirmative defenses, including lack of standing, and counterclaims, inter alia, to quiet title.  Thereafter, in an order dated February 3, 2014, the Supreme Court granted the plaintiff's motion for summary judgment setting aside the foreclosure sale, relieving the plaintiff of its bid in the foreclosure sale, and declaring that the referee's deed is null and void.  The court also granted those branches of the motion which were for summary judgment dismissing the defendants' first, second, and fifth counterclaims and their first affirmative defense.  However, the court denied those branches of the motion which were for summary judgment dismissing the defendants' remaining affirmative defenses and counterclaims, determining that there were triable issues of fact regarding when the plaintiff received physical possession of the note.

By notice of motion dated May 6, 2015, the plaintiff moved, inter alia, for leave to amend the complaint to add a cause of action to foreclose the subject mortgage.  Murillo opposed the plaintiff's motion.  In the order entered September 8, 2015, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for leave to amend the complaint, and directed the plaintiff to file its supplemental summons and amended complaint within three days after entry of the order.  Murillo appeals.

“In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading ‘are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ ” (Myung Hwa Jang v. Mang, 164 A.D.3d 803, 804, 83 N.Y.S.3d 293, quoting Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238;  see CPLR 3025[b];  Mannino v. Wells Fargo Home Mtge., Inc., 155 A.D.3d 860, 862, 65 N.Y.S.3d 66).  Where this standard is met, no evidentiary showing of merit is required in a motion to amend the complaint under CPLR 3025(b) (see Lucido v. Mancuso, 49 A.D.3d at 229, 851 N.Y.S.2d 238;  see also 1259 Lincoln Place Corp. v. Bank of N.Y., 159 A.D.3d 1004, 1006, 74 N.Y.S.3d 575).  The determination to permit or deny amendment is committed to the sound discretion of the trial court (see CPLR 3025[b];  Edenwald Contr. Co. v. New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164).

Here, contrary to Murillo's contentions, she failed to establish that she was directly prejudiced or surprised by the plaintiff's delay in seeking leave to amend the complaint to assert a cause of action to foreclose the mortgage (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008).  Indeed, the defendants' affirmative defenses in their answer to the complaint in this action made specific allegations that the plaintiff did not have the “authority to foreclose” the mortgage.

Further, under the circumstances of this case, we agree with the Supreme Court's determination to apply the relation-back doctrine to find that the statute of limitations did not bar the amendment of the complaint (see Pendleton v. City of New York, 44 A.D.3d 733, 737, 843 N.Y.S.2d 648;  see also Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926, 927–928, 78 N.Y.S.3d 169).  Since the proposed amendment was not palpably insufficient or patently devoid of merit, we agree with the court's determination granting that branch of the plaintiff's motion which was for leave to amend the complaint (see Ramos v. Baker, 91 A.D.3d 930, 932, 937 N.Y.S.2d 328;  see also Rosicki, Rosicki, & Assoc., P.C. v. Cochems, 59 A.D.3d 512, 514, 873 N.Y.S.2d 184).

Murillo's remaining contentions are either not properly before this Court since they were raised for the first time in her reply brief on appeal (see David B. v. Millar, 2 A.D.3d 763, 763–764, 769 N.Y.S.2d 731), or without merit.

MASTRO, J.P., RIVERA, DUFFY and BRATHWAITE NELSON, JJ., concur.

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