The following papers were read on this motion pursuant to CPLR 2219(a): Papers NYSCEF Numbered Motion of Motion, Affirmation, Affidavit, Exhibits Memorandum of Law in Support 53-61 Affirmation in Opposition, Exhibits 62-71 Reply, Exhibits 75-77 DECISION AND ORDER In this foreclosure action Defendant Daneya M. Burroughs moves for an Order, pursuant to CPLR §§3025(b) and/or 2004, granting her leave to amend her answer. Defendant filed a timely answer on December 9, 2023. On August 13, 2024, she filed an amended answer. On August 14, 2024, plaintiff bank rejected the amended answer. Defendant argues that leave to amend should be given freely pursuant to CPLR §3025(b) in the absence of prejudice. Lucido v. Mancuso, 49 A.D.3d 220, 222 (2d Dep’t 2008). Defendant’s proposed amended answer seeks to add defenses of failure to meet a condition precedent under RPAPL 1303, 1304, 1306; failure of plaintiff to meet the statute of limitations; statue of fraud; res judicata, collateral estoppel, judicial estoppel; and violations under New York Banking Law 6-1 and 6- m. Defendant argues that since no prior motions by plaintiff have been made, there can be no prejudice to plaintiff. Plaintiff argues that affirmative defenses are deemed waived if not raised in the pleading. Ensign v. Kiekosky, 95 A.D.2d 371, (2d Dept. 1983). Further, plaintiff asserts that while leave is permitted, courts are more hesitant to grant amendment when the facts on which they are based were known to the movant earlier and could have been pleaded without trouble then. L.B. Foster Co. v. Terry Contr., 25 A.D.2d 721 (1st Dept. 1966). Additionally, plaintiff states that defendant has presented a proposed amended answer that alleges ten (10) affirmative defenses that are completely unsupported by any facts or evidence, and that these proposed affirmative defenses do not comply with CPLR §§3013 and 3018. Moreover, plaintiff asserts that there is prejudice if the amendment is allowed because it raises issues that were waived in defendant’s original answer. Additionally, defendant’s allegation that plaintiff failed to comply with New York Banking Law (“BL”) §§6-1 and 6-m does not apply to this matter, because at the time of the loan’s origination, BL §6-1 was not in effect. Section 6-1 governs what it terms “high-cost loans,” classified as such by Banking §6-1(1)(g), and insofar as relevant here, the protections of §6-1 applied to “home loans,” which under the law in effect at the time of the transaction included loan amounts no larger than $300,000.00. Here, the subject loan of $400,000.00 originated prior to October 14, 2007, and exceeded the statute’s threshold, applicable at the time of the transaction, and, therefore, §6-1 does not apply. Further, plaintiff states that the proposed affirmative defense does not have merit as a matter of law, because the loan originated on September 28, 2007, Section 6-m is inapplicable as that statute went into effect on August 5, 2008 and only applies to loans consummated on or after September 1, 2008. After oral argument, defendant’s motion for leave to amend her answer, pursuant to CPLR §3025(b), is GRANTED TO THE EXTENT that defendant may amend her answer to include the proposed amended defenses except for those which the court finds that plaintiff has demonstrated prejudice. The affirmative defenses which defendant may not include are those proposed under RPAPL 1303 and New York State Banking Law §§6-1 and 6-m. The court finds that plaintiff submitted proof of compliance with RPAPL 1303 in its affidavit of service and that defendant’s contentions regarding Banking Law §§6-1 and 6-m do not raise triable issues of fact. Emigrant Mtg Co., Inc. v. Fitzpatrick, 95 A.D.3d 1169 (2d Dept. 2012). Defendant to serve and file her amended answer within 20 days of entry of this order.
