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Motion seeking leave to amend the answer to seek affirmative defense of lack of standing is properMarch 1, 2010

Aurora Loan Servs., LLC v Thomas, 2010 NY Slip Op 01606 (2d Dept. 2010)

Contrary to the plaintiff’s contention, the defendant Terence Thomas did not waive the defenses of lack of standing and lack of capacity to sue (cf. Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239). Further, the Supreme Court properly granted those branches of Thomas’s motion which were for leave to amend his answer to assert the defenses of lack of standing and lack of capacity to sue. Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Lucido v Mancuso, 49 AD3d 220, 222). Here, the proposed amendments were not palpably insufficient or patently devoid of merit. Since the documents upon which Thomas relied in making his motion were obtained from the plaintiff in discovery, there was also no showing of prejudice or surprise resulting directly from Thomas’s delay in seeking leave. Accordingly, the Supreme Court properly granted those branches of Thomas’s motion.”

This would not apply in a no-fault action.  This has been discussed previously.  Type in “assignment” in the search box to the right if you want to see a prior discussion of this issue.

But just note how through discovery, information was gleaned that would allow an otherwise untimely motion to have merit.

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