McKie v. Flagstar Bank, FSB

• Decision Date: 11 February 2015
• Docket Number: 2013-02219, Index No. 3863/12.
• Citation: 125 A.D.3d 727,999 N.Y.S.2d 901 (Mem),2015 N.Y. Slip Op. 01246
• Parties: Charles McKIE, appellant, v. FLAGSTAR BANK, FSB, respondent.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 727

999 N.Y.S.2d 901 (Mem)

2015 N.Y. Slip Op. 01246

Charles McKIE, appellant

v.FLAGSTAR BANK, FSB, respondent.

2013-02219, Index No. 3863/12.

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

Feb. 11, 2015.

Charles McKie, Westbury, N.Y., appellant pro se.

Ellenoff Grossman & Schole, LLP, New York, N.Y. (Eric S. Weinstein of counsel), for respondent.

Opinion

In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered December 26, 2012, as denied his cross motion for leave to amend his complaint and his separate cross motion, inter alia, to stay the sale of the subject property.

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

“Leave to amend pleadings should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” (Matter of Haberman v. Zoning Bd. of Appeals of City of Long Beach, 119 A.D.3d 789, 791, 990 N.Y.S.2d 245 [internal quotation marks omitted]; see CPLR 3025[b] ). Here, the issue underlying the proposed amendment was raised, necessarily decided, and material in a prior action in which the plaintiff had a full and fair opportunity to litigate the issue (see generally Storman v. Storman, 90 A.D.3d 895, 897, 935 N.Y.S.2d 63 ). Therefore, relitigation of the issue underlying the proposed amendment was barred by the doctrine of collateral estoppel (see id. ). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion for leave to amend his complaint, as the proposed amendment was patently devoid of merit.

In light of, among other things, the denial of the plaintiff's cross motion for leave to amend his complaint, under the circumstances of this case, the Supreme Court properly denied the plaintiff's separate cross motion, inter alia, to stay the sale of the subject property.

DILLON, J.P., DICKERSON, COHEN and BARROS, JJ., concur.