U.S. Bank National Association, etc., respondent, v. Constance Coleman, et al., appellants, et al., defendants.

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

U.S. Bank National Association, etc., respondent, v. Constance Coleman, et al., appellants, et al., defendants.

2017–11350 (Index No. 68506/13)

Decided: December 02, 2020

REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. Wayne Gabel, Ossining, NY, for appellants. Reed Smith, New York, N.Y. (Kerren B. Zinner, Andrew B. Messite, and Joseph S. Jacobs of counsel), for respondent.

Argued—September 24, 2020

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Constance Coleman and Tanai Coleman appeal from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 11, 2017.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Constance Coleman and Tanai Coleman, to strike their answer, and for an order of reference, and, in effect, denied those defendants' application for leave to amend their answer.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, in effect, denied the application of the defendants Constance Coleman and Tanai Coleman for leave to amend their answer is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

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

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

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendants Constance Coleman and Tanai Coleman (hereinafter together the defendants).  The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference.  The defendants opposed the motion and made an application for affirmative relief consisting of leave to amend their answer.  In an order dated September 11, 2017, the Supreme Court granted the plaintiff's motion and, in effect, denied the defendants' application.  The defendants appeal.

We agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference.  The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law (see Deutsche Bank Natl. Trust Co. v Auguste, 185 AD3d 657, 658).  The defendants failed to raise a triable issue of fact in opposition.

Further, the Supreme Court, having exercised its discretion to entertain the defendants' application for leave to amend their answer (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 65), in effect, denied that application, and we agree with this determination under the circumstances (see CPLR 3025[b];  Deutsche Bank Natl. Trust Co. v Auguste, 185 AD3d at 658).

RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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