Dinardo v. Patcam Service Station, Inc.

228 A.D.2d 543, 644 N.Y.2d 779, 644 N.Y.S.2d 779, 1996 N.Y. App. Div. LEXIS 7167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1996
• Status: Published

Opinion

"It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default * * * When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to [the] default” (Village Bank v Wild Oaks Holding, 196 AD2d 812). We agree with the Supreme Court that the appellants’ allegations concerning, inter alia, lack of consideration, were insufficient to create a triable issue of fact with respect to the foreclosure of the mortgage.

Moreover, the court properly denied the appellants’ application for leave to amend their answer since the proposed amendment lacks merit. While permission to serve amended pleadings should be freely granted (see, CPLR 3025 [b]), a pleading which is totally devoid of merit should not be allowed (see, Kaplansky v Kaplansky, 212 AD2d 667; Krupp v Aetna Life & Cas. Co., 104 AD2d 857). Sullivan, J. P., Joy, Krausman and McGinity, JJ., concur.