- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- BP3 Capital, LLC v. 5120 Realty Corp.
- Date
- May 27, 2026
- Slip Op. No.
- 2026 NY Slip Op 03286
Background
BP3 Capital, LLC commenced this action to foreclose a mortgage on property in Kings County against defendant 5120 Realty Corp. The plaintiff moved for summary judgment on the complaint and for an order of reference. The defendant cross-moved pursuant to CPLR 3025(b) for leave to amend its answer. The Supreme Court, Kings County, granted the plaintiff’s motion for summary judgment and an order of reference and denied the defendant’s cross-motion to amend. A referee was appointed, and a judgment of foreclosure and sale was entered. The defendant appealed.
Holding
The Appellate Division affirmed the judgment of foreclosure and sale. The Court upheld the grant of summary judgment to the plaintiff, finding that BP3 Capital established its prima facie entitlement to judgment as a matter of law by producing evidence of the mortgage, the underlying note, and the defendant’s default in payment. The Court also affirmed the denial of the defendant’s cross-motion to amend its answer, finding that the proposed amendments were palpably insufficient or devoid of merit. The Court further upheld the referee’s report and the judgment directing sale of the property.
Takeaways
A foreclosure plaintiff establishes prima facie entitlement to summary judgment by producing the mortgage, the note, and evidence of the defendant’s default. Once this showing is made, the burden shifts to the defendant to raise a triable issue of fact. A cross-motion for leave to amend the answer will be denied if the proposed amendments are palpably insufficient or devoid of merit, even under the liberal standard of CPLR 3025(b). The denial of leave to amend effectively eliminates the defendant’s ability to interpose new defenses, leaving the plaintiff’s prima facie showing unrebutted.
Why It Matters
This decision illustrates the efficient progression of a foreclosure action from summary judgment through judgment of foreclosure and sale when the defendant fails to raise meritorious defenses. Mortgage borrowers facing foreclosure must timely assert viable defenses in their answers and should not rely on last-minute amendments to their pleadings as a strategy for delaying the proceedings. The denial of leave to amend when the proposed amendments lack merit demonstrates that courts will not permit procedural maneuvers to delay foreclosure when the plaintiff has established a clear right to relief.