Opinion
June 17, 1996
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed, with costs.
"It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default * * * When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to [the] default" (Village Bank v. Wild Oaks Holding, 196 A.D.2d 812). We agree with the Supreme Court that the appellants' allegations concerning, inter alia, lack of consideration, were insufficient to create a triable issue of fact with respect to the foreclosure of the mortgage.
Moreover, the court properly denied the appellants' application for leave to amend their answer since the proposed amendment lacks merit. While permission to serve amended pleadings should be freely granted (see, CPLR 3025 [b]), a pleading which is totally devoid of merit should not be allowed (see, Kaplansky v. Kaplansky, 212 A.D.2d 667; Krupp v. Aetna Life Cas. Co., 104 A.D.2d 857). Sullivan, J.P., Joy, Krausman and McGinity, JJ., concur.