Lombardi v. Pisari

77 A.D.2d 646, 430 N.Y.S.2d 139, 1980 N.Y. App. Div. LEXIS 12377

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 1980
• Status: Published

Opinion

In a mortgage foreclosure action, the defendants, doing business as F. & G. Associates, appeal from an order of the Supreme Court, Richmond County, dated August 21, 1979 which denied their motion for leave to amend their answer, and granted plaintiffs cross motion, inter alia, to strike the answer and for summary judgment. Order affirmed, without costs or disbursements. While leave to amend or supplement pleadings generally "shall be freely given” (CPLR 3025, subd [b]), the record before us discloses a failure by appellants to supply any evidentiary specificity supporting the claim sought to be asserted in the proposed counterclaim, and a failure to demonstrate that the claim arose subsequent to service of the original answer. Furthermore, the answer did not assert a defense properly raising a question of fact relevant to the claim of default on the mortgage, and therefore was insufficient as a matter of law to preclude the granting of summary judgment on the foreclosure action. Mollen, P. J., Gibbons, Martuscello and Weinstein, JJ., concur.