Beharrie v. MRAG Dev., LLC

210 A.D.3d 945

179 N.Y.S.3d 259

Xenia BEHARRIE, etc., respondent,

v.MRAG DEVELOPMENT, LLC, appellant.

2021–01689

Index No. 517719/18

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

Submitted—October 3, 2022

November 23, 2022

Steve C. Okenwa, P.C., Brooklyn, NY, for appellant.

Law Offices of Jason Rebhun, P.C., New York, NY (John A. Borelli of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to set aside a deed conveying certain real property, the defendant appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated February 16, 2021. The order, insofar as appealed from, denied the defendant's motion pursuant to CPLR 3025(b) for leave to amend its answer.

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

In August 2018, the plaintiff commenced this action, inter alia, to set aside a deed conveying certain real property to the defendant. In November 2018, the defendant interposed an answer which did not assert the affirmative defense of lack of standing. In May 2020, the defendant moved pursuant to CPLR 3025(b) for leave to amend its answer to assert the affirmative defense of lack of standing. By order dated February 16, 2021, the Supreme Court, among other things, denied the defendant's motion. The defendant appeals.

Preliminarily, the plaintiff's contention that leave to amend was properly denied because the defendant waived the defense of lack of standing by failing to assert that defense in its answer or in a pre-answer motion to dismiss the complaint is without merit. In this regard, "the waiver that results from a failure to affirmatively plead a defense in accordance with CPLR 3018(b), including a waiver of the defense of standing, may be retracted through subsequent amendment to the pleadings" ( GMAC Mtge., LLC v. Coombs, 191 A.D.3d 37, 47, 136 N.Y.S.3d 439 ; see U.S. Bank N.A. v. Laino, 172 A.D.3d 947, 947, 100 N.Y.S.3d 302 ).

Although leave to amend should be freely given, a court should nonetheless consider whether the proposed amendment prejudices or surprises the opposing party, or if it is palpably insufficient or patently devoid of merit (see Derago v. Ko, 189 A.D.3d 1352, 1354, 134 N.Y.S.3d 801 ; Strunk v. Paterson, 145 A.D.3d 700, 701, 44 N.Y.S.3d 64 ). While "[n]o evidentiary showing of merit is required under CPLR 3025(b)," the court must still determine "whether the proposed amendment is ‘palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit" ( Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238 ; see Urias v Daniel P. Buttafuoco & Assoc., PLLC, 173 A.D.3d 1244, 1245, 104 N.Y.S.3d 712 ). "A determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed" ( Krigsman v. Cyngiel, 130 A.D.3d 786, 786, 14 N.Y.S.3d 94 [internal quotation marks omitted]; see McIntosh v. Ronit...