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Amended Pleadings Under CPLR 3025(b)

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  • Posted on: Aug 26 2022

By Jonathan H. Freiberger

Section 3025 of the CPLR permits litigants to amend their pleadings.  Without leave of court, a party can amend a pleading once, as of right, “within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.”  CPLR 3025(a).  

After the expiration of the “as of right” time to amend pleadings, a party can seek the court’s permission (or all parties can stipulate) to amend pleadings or supplement them with “additional or subsequent transactions or occurrences.”  CPLR 3025(b).  When amendment is sought be motion, “leave shall be freely given upon such terms as may be just….”  Id.  When leave is sought, the proposed amended or supplemental pleading must accompany the motion and all changes must be “clearly show[n].”  Id.

Leave to amend a pleading pursuant to CPLR 3025(b) “should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party.  DLJ Mortgage Capital, Inc. v. David, 147 A.D.3d 1024, 1025 (2nd Dep’t 2017) (citations omitted).  Accordingly, “[n]o evidentiary showing of merit is required under CPLR 3025(b).”  Siddiqui v. Smith, 207 A.D.3d 681 (2nd Dep’t 2022) (citations and internal quotation marks omitted). Determinations of whether to grant leave to amend “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 (2nd Dep’t 2009) (citation omitted).

On August 24, 2022, the Appellate Division, Second Department, decided U.S. Bank Nat. Ass’n v. Cuesta, a mortgage foreclosure action addressing pleading amendments.  The defendant in US Bank borrowed money secured by a mortgage.  The underlying paper was assigned to plaintiff, who commenced a foreclosure action in April of 2016, after borrower’s default.  Lender moved for summary judgment in September of 2016.  Borrower, who appeared pro se, opposed the motion by arguing that lender failed to comply with the mandatory settlement conference provisions of CPLR 3408.  CPLR 3408 requires a lender in residential foreclosure actions involving “home loans” to file proof of service of process within twenty days of service and for the court to hold a mandatory settlement conference within 60 days of such filing (or such adjourned date agreed to by the parties).  The purpose of the settlement conference is to further “settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to: (i) determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, including, but not limited to, a loan modification, short sale, deed in lieu of foreclosure, or any other loss mitigation option; or (ii) whatever other purposes the court deems appropriate.”  CPLR 3408.  Ultimately, settlement conferences were held in January and April of 2017.

Thereafter, in April of 2018, borrower, who had since retained counsel, moved pursuant to CPLR 3025(b) to amend her answer to include additional affirmative defenses.  In August of 2019, supreme court granted borrower’s motion for leave to amend and denied lender’s motion for summary judgment.  Lender appealed and the Second Department affirmed.

First, the Court rejected lender’s argument that the amendment process cannot be used to revive defenses that would have otherwise been waived.  Thus, the Court reiterated that “defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay.” (Citation omitted.)

Second, the Court rejected lender’s argument that borrower’s motion was not supported by an adequate affidavit of merit.  The Court stated that it will not “not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” and, instead, it “need only determine whether the proposed amendment is palpably insufficient to state a cause of action or defense, or is patently devoid of merit.”  (Citations and internal quotation marks omitted.)

Finally, the Court rejected lender’s claim of prejudice due to the delay in resolution caused by the amendment.  “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine.”  (Citations and internal quotation marks omitted.)  The Court explained that prejudice “requires some indication that the defendant has been hindered in the preparation of his or her case or has been prevented from taking some measure in support of his or her position.” (Citations, internal quotation marks and brackets omitted.)


Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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