U.S. Bank Nat'l Ass'n v. Cuesta

• Decision Date: 24 August 2022
• Docket Number: 2019–12467,Index No. 605641/16
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Emperatriz CUESTA, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 821
172 N.Y.S.3d 638 (Mem)

U.S. BANK NATIONAL ASSOCIATION, etc., appellant,
v.
Emperatriz CUESTA, et al., respondents, et al., defendants.

2019–12467
Index No. 605641/16

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

Submitted—May 26, 2022
August 24, 2022

Hinshaw & Culbertson, LLP, New York, NY (Brian S. McGrath of counsel), for appellant.

Charles Wallshein, Melville, NY, for respondents.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated August 21, 2019. The order, insofar as appealed from, granted that branch of the motion of the defendants Emperatriz Cuesta and Humberto Aponza which was pursuant to CPLR 3025(b) for leave to amend their answer, and denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against those defendants.

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

On August 10, 2005, the defendant Emperatriz Cuesta executed a note, and, along with the defendant

172 N.Y.S.3d 639

Humberto Aponza (hereinafter together the defendants), a mortgage, both of which were subsequently assigned to the plaintiff. On April 11, 2016, the plaintiff commenced this foreclosure action, alleging that the defendants defaulted by failing to make the monthly payment due on December 1, 2008, and all subsequent payments thereafter. The defendants, pro se, answered the complaint, asserting, inter alia, affirmative defenses and counterclaims.

In September 2016, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants. The defendants, pro se, submitted an affidavit by Cuesta in opposition to the motion, asserting, among other things, that the subject premises was his and his family's primary residence and that the plaintiff failed to comply with CPLR 3408. Thereafter, the Supreme Court held conferences pursuant to CPLR 3408 in January and April 2017.

In April 2018, the defendants, through counsel, moved, inter alia, pursuant to CPLR 3025(b) for leave to amend their answer to assert additional affirmative defenses. The plaintiff opposed the motion. In an order dated August 21, 2019, the Supreme Court, inter alia, granted that branch of the defendants' motion which was for leave to amend their answer to assert additional affirmative defenses, and denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendants. The plaintiff appeals.

"A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties" ( CPLR 3025[b] ). "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" ( Gitlin v. Chirinkin, 60 A.D.3d 901, 902, 875 N.Y.S.2d 585 ; see Thomson v. Watchtower Bible & Tract Socy. of N.Y., Inc., 198 A.D.3d 996, 998, 156 N.Y.S.3d 382 ; Krigsman v. Cyngiel, 130 A.D.3d 786, 786, 14...