One W. Bank FSB v. Persaud
This text of One W. Bank FSB v. Persaud (One W. Bank FSB v. Persaud) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
One W. Bank FSB v Persaud
2026 NY Slip Op 04316
July 8, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
One West Bank FSB, plaintiff,
v
Salochini Persaud, etc., appellant, et al., defendants; PHH Mortgage Corporation, nonparty-respondent.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2024-11867, 2024-11871, (Index No. 708029/22)
Cheryl E. Chambers, J.P.
Deborah A. Dowling
Lillian Wan
James P. McCormack, JJ.
Petroff Amshen LLP, Brooklyn, NY (James Tierney, Steven Amshen, and Maria G. Garber of counsel), for appellant.
Hinshaw & Culbertson LLP, New York, NY (Joseph C. Lafuente and Schuyler B. Kraus of counsel), for nonparty-respondent.
DECISION & ORDER
In an action, inter alia, to foreclose a mortgage, the defendant Salochini Persaud appeals from (1) a decision of the Supreme Court, Queens County (Anna Culley, J.), dated July 3, 2024, and (2) an order of the same court dated October 3, 2024. The order, insofar as appealed from, upon the decision, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, and for an order of reference, appointed a referee to compute the amount due on the note, and denied that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend her answer.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Salochini Persaud, to strike her answer, and for an order of reference are denied, and the cross-motion of the defendant Salochini Persaud pursuant to CPLR 3025(b) for leave to amend her answer is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendant Salochini Persaud.
In August 2009, One West Bank FSB (hereinafter One West), predecessor in interest to PHH Mortgage Corporation (hereinafter PHH), commenced this action, inter alia, to foreclose a mortgage encumbering real property located in Queens against, among others, the defendant Salochini Persaud (hereinafter the defendant). The defendant interposed an answer but did not assert lack of standing or failure to comply with a contractual condition precedent as affirmative defenses. Thereafter, One West moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant opposed the motion and cross-moved pursuant to CPLR 3025(b) for leave to amend her answer to assert the affirmative defenses of lack of standing and failure to comply with a contractual condition [*2]precedent. By order dated October 3, 2024, the Supreme Court, inter alia, granted those branches of One West's motion, appointed a referee to compute the amount due on the note, and denied the defendant's cross-motion. The defendant appeals.
Contrary to PHH's contention, the defendant's failure to assert the affirmative defense of lack of standing in her answer does not bar her from asserting it in the action. "RPAPL 1302-a (as added by L 2019, ch 739, § 1 [eff Dec. 23, 2019]) provides that, notwithstanding the provisions of CPLR 3211(e), 'any objection or defense based on the plaintiff's lack of standing in a foreclosure proceeding related to a home loan, as defined in [RPAPL 1304(6)(a)], shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss'" (Deutsche Bank Natl. Trust Co. v Groder, 218 AD3d 542, 544, quoting RPAPL 1302-a). Under the circumstances of this case, that branch of the defendant's cross-motion which was pursuant to CPLR 3025(b) for leave to amend her answer to assert the affirmative defense of lack of standing (see Deutsche Bank Natl. Trust Co. v Groder, 218 AD3d at 544; US Bank N.A. v Blake-Hovanec, 191 AD3d 821, 825; GMAC Mtge., LLC v Coombs, 191 AD3d 37, 47-50) should have been granted.
Likewise, the Supreme Court should have granted that branch of the defendant's cross-motion which was pursuant to CPLR 3025(b) for leave to amend her answer to assert the affirmative defense of failure to comply with a contractual condition precedent. Although a defendant waives a defense of failure to comply with a contractual condition precedent by failing to assert it in his or her answer (see CPLR 3015[a]; Deutsche Bank Natl. Trust Co. v Finger, 195 AD3d 789, 792), such a defense can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) (see Wilmington Sav. Fund Socy., FSB v Sotomayor, 222 AD3d 702, 703; Wall St. Mtge. Bankers, Ltd. v Berquin, 213 AD3d 972, 975-976). "In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (U.S. Bank N.A. v Singer, 192 AD3d 1182, 1185 [internal quotation marks omitted]; see CPLR 3025[b]; Citimortgage, Inc. v Rogers, 203 AD3d 1125, 1126). "The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion" (Citimortgage, Inc. v Rogers, 203 AD3d at 1126). Despite PHH's contention that it was prejudiced by the lateness of the defendant's cross-motion, "'[m]ere 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'" (Deutsche Bank Natl. Trust Co. v Kreitzer, 203 AD3d 800, 803, quoting U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724; see Cirillo v Lang, 206 AD3d 611, 612). Here, PHH failed to show that granting that branch of the defendant's cross-motion seeking to add the affirmative defense of failure to comply with a contractual condition precedent would cause it to be hindered in the preparation of its case or to be prevented from taking some measure in support of its position (see Cirillo v Lang, 206 AD3d at 612). Additionally, PHH failed to meet its burden of demonstrating that the proposed amendment was palpably insufficient or patently devoid of merit (see Wilmington Sav. Fund Socy., FSB v Sotomayor, 222 AD3d at 703; Wall St. Mtge.
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