Motion for leave to amend a pleading and motion to dismiss.

Practice point: A motion for leave to amend a pleading should be freely granted in the absence of prejudice or surprise resulting directly from the delay, unless the amendment would be palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. Here, the defendant had not moved before serving his answer to dismiss the complaint on the ground of lack of standing, and he did not raise the defense of lack of standing in his answer. By not raising the defense at that time, he failed to put the plaintiff on notice of the defense at a time the plaintiff could have cured any defect by promptly recommencing the action. The defendant failed to oppose the plaintiff's motion for summary judgment on the complaint, and he waited more than seven additional months after the motion for summary judgment had been granted before moving for leave to amend his answer to assert the defense of lack of standing. Under these circumstances, the branch of the motion for leave to amend the answer was denied.

Student note: For the same reasons, the branch of the motion to dismiss the complaint for lack of standing was denied.

Case: HSBC Bank USA v. Philistine, NY Slip Op 06580 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.