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Long Island Foreclosure Lawyers are often retained by persons who had on their own or with the help of someone with limited legal knowledge filed a timely answer to the foreclosure complaint. Usually, the  answer is inadequate and must be expeditiously amended to include more and better stated affirmative defenses and counterclaims in order to more properly protect the new client. While the client may have timely filed their original answer within the 20-30 days allowed under the CPLR, the client may be alleged to have waived certain defenses if they seek to assert them later without having first asserted them in the answer. Therefore, an amended answer that is more robust than the original answer is a good idea. It is especially a good idea because there is a liberal standard when it comes to amending a timely filed answer.

The law that applies to a motion to amend an answer by a defendant is NY CPLR 3025(b) which deals with amending pleadings with leave of the Court and states as follows :
“Amendments and supplemental pleadings by leave. 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. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.”

McKinneys in commenting on CPLR 3025(b) states:

“This is one of the more important practice provisions, and it leaves the matter of whether to allow amendment almost entirely to the court’s discretion to be determined on a sui generis basis. The policy is to permit amendment, for almost any purpose, as long as the adverse party cannot claim prejudice. This policy is spelled out in the instruction that “leave shall be freely given.” CPLR 3025(b).”

McKinneys shows that mere lateness is not a bar to amend an answer and the opposing party must show significant prejudice to a motion to amend and answer.  McKinneys continues to state:

“Mere lateness is not a barrier to granting the motion to amend. It must be lateness coupled with significant prejudice to the other side. Edenwald Contracting Co., Inc. v. New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55 (1983); St. Paul Fire & Marine Ins. Co. v. Town of Hempstead, 291 A.D.2d 488, 738 N.Y.S.2d 226 (2d Dep’t 2002) ; Medi-Trust Fin. Servs. Corp. v. Giardina, 270 A.D.2d 803, 705 N.Y.S.2d 912 (4^th Dep’t 2000); Norwood v. City of New York, 203 A.D.2d 147, 610 N.Y.S.2d 249 (1^st Dep’t 1994); Dougherty v. Wade Lupe Const. Co., Inc., 98 A.D.2d 868, 470 N.Y.S.2d 812 (3d Dep’t 1983).”

Courts have freely granted amendments in the absence of prejudice or surprise directly resulting from delay.  See e.g. U.S. Bank NA vs. Sharif, 89 A.D. 723, 933 N.Y.S. 2d 293 (2^nd App. Nov. 1, 2011), which decided that:
“Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit” (Aurora Loan Servs., LLC v. Thomas, 70 A.D.3d at 987, 897 N.Y.S.2d 140; see CPLR 3025[b]; Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238).  “‘Mere lateness is not a barrier to the amendment.  It must be **296 lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’” (Public Adm’r of Kings County v. Hossain Constr. Corp., 27 A.D.3d 714, 716, 815 N.Y.S.2d 621, quoting Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164; see Abrahamian v. Tak Chan, 33 A.D.3d 947, 949, 824 N.Y.S.2d 117.)
In Sharif the Court decided that:

Leave allowing mortgagor and codefendant to serve and file amended answer to assert defense based on lack of standing was warranted in foreclosure action, given failure of assignee of mortgage to demonstrate existence of prejudice or surprise that would result from amendment, or that proposed amended answer was palpably insufficient or patently devoid or merit.

Even a delay of several years to amend a pleading has been viewed as acceptance when discovery was on going.  See Giuffre v. DiLeo, 90 A.D.3d 602, 934 N.Y.S.2d 449 (Dec. 6, 2011).  Even where an amendment to the pleading is sought on the eve of a trial, Courts have granted the Defendant the right to amend its answer where the Plaintiff would not be prejudiced or surprised by the request to amend the answer.  See Lettier vs. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 (Feb. 10, 2009).  As stated in the Lettieri case:
Although the motion was made on the eve of the trial and more than two years after defendants answered the complaint, given plaintiff’s assertion that his intent from the inception of the action was to pursue a claim for battery, which is governed be a one-year statute of limitations (CPLR 215[3]), he cannot reasonably claim to have been prejudiced or surprised by defendants’ request to amend their answers (see Solomon Holding Corp. v. Golia, 55 A.D.3d 507, 55 A.D.3d 507 [2008]; Seda v. New York City Hous. Auth., 181 A.D.2d 469, 581 N.Y.S.2d 20 [1992], lv. Denied 80 N.Y.2d 759, 589 N.Y.S.2d 309, 602 N.E.2d 1125 [1992]).

Therefore given the liberality of cases allowing the amending of an answer, the Defendant should be allowed to amend its answer given that the Plaintiff cannot usually show actual prejudice as defined by the case law.  Often, even if time has passed in the case, the litigation was dormant for the vast majority of that time. If, for example, the Defendant realizes that it is bereft of defenses when defending against the Plaintiff’s motion for summary judgment, the Defendant may crossmove to amend its answer and oppose the the motion for summary judgment with its newly stated defenses. With the Defendant’s filing  meritorious defenses to the Plaintiff’s motion for summary judgment, the Defendant can now more adequately oppose the Plaintiff’s motion.

For an assessment as to whether a Long Island foreclosure lawyer can help make a motion to amend your answer in a foreclosure matter, please call at 631.271.3737 or email, weiss@ny-bankruptcy.com,  the Law Office of Ronald D.Weiss, P.C.