Summary
declining to cancel interest where "the complained-of delay in obtaining an amended judgment of foreclosure," which was partly due to a stay of the action, could not "be solely attributable to the plaintiff, and ... the complained-of conduct of the plaintiff ... was not so egregious as to merit the imposition of sanctions against it in the form of limiting the interest awarded" (citing Prompt Mortg. Providers of N. Am., LLC v. Zarour, 155 A.D.3d 912, 64 N.Y.S.3d 106, 106 (2017) )
Summary of this case from Rora LLC v. 404 E. 79th St. Lender LLCOpinion
2017–09688 Index No. 8058/12
12-30-2020
PEOPLE'S UNITED BANK, etc., respondent, v. PATIO GARDENS III, LLC, appellant, et al., defendants.
The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Jennifer J. Block and Keri A. Joeckel of counsel), for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Keith L. Abramson of counsel), for respondent.
The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Jennifer J. Block and Keri A. Joeckel of counsel), for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Keith L. Abramson of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to foreclose two mortgages, the defendant Patio Gardens III, LLC, appeals from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated July 6, 2017. The order denied the motion of the defendant Patio Gardens III, LLC, to toll and cancel the interest due under the subject mortgage loans from July 14, 2015, until the date of entry of an amended judgment of foreclosure and sale.
ORDERED that the order is affirmed, with costs.
In March 2002, the plaintiff commenced this action to foreclose two mortgages, one each on two separate parcels of commercial real property owned by the defendant Patio Gardens III, LLC (hereinafter Patio Gardens). In an order dated July 14, 2015, the Supreme Court granted the plaintiff's motion for a judgment of foreclosure and sale, which was issued on the same date. The sale of the properties was adjourned several times, and this action was stayed, inter alia, while a prior related appeal was pending.
By notice of motion dated April 5, 2017, Patio Gardens moved to toll and cancel the interest due under the subject mortgage loans from July 14, 2015, until the date of entry of an amended judgment of foreclosure and sale, on the ground that all of the delay that has occurred since July 14, 2015, is attributable to the plaintiff. The Supreme Court denied the motion, and Patio Gardens appeals. We affirm.
"[A] foreclosure action is equitable in nature and triggers the equitable powers of the court" ( Rajic v. Faust, 165 A.D.3d 716, 717, 85 N.Y.S.3d 470 [internal quotation marks omitted]; see U.S. Bank N.A. v. Losner, 145 A.D.3d 935, 937, 44 N.Y.S.3d 467 ). "In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party" ( BAC Home Loans Servicing, L.P. v. Jackson, 159 A.D.3d 861, 862, 74 N.Y.S.3d 59 [internal quotation marks omitted]; see Breskin v. Moronto, 172 A.D.3d 1298, 102 N.Y.S.3d 85 ; Citicorp Trust Bank, FSB v. Vidaurre, 155 A.D.3d 934, 934, 65 N.Y.S.3d 237 ), such as where the plaintiff's conduct has prejudiced the defendant (see BAC Home Loans Servicing, L.P. v. Jackson, 159 A.D.3d at 863, 74 N.Y.S.3d 59 ). Further, a tolling and cancellation of interest may also be warranted where there is an unexplained delay in prosecution of a mortgage foreclosure action (see Citicorp Trust Bank, FSB v. Vidaurre, 155 A.D.3d 934, 65 N.Y.S.3d 237 ; Danielowich v. PBL Dev., 292 A.D.2d 414, 415, 739 N.Y.S.2d 408 ; South Shore Fed. Sav. & Loan Assn. v. Shore Club Holding Corp., 54 A.D.2d 978, 389 N.Y.S.2d 29 ).
Here, we agree with the Supreme Court's determination that the complained-of delay in obtaining an amended judgment of foreclosure and sale cannot be solely attributable to the plaintiff, and that the complained-of conduct of the plaintiff in this action was not so egregious as to merit the imposition of sanctions against it in the form of limiting the interest awarded (see Prompt Mtge. Providers of N. Am., LLC v. Zarour, 155 A.D.3d 912, 915, 64 N.Y.S.3d 106 ).
Accordingly, the Supreme Court providently exercised its discretion in denying Patio Gardens' motion to toll and cancel the interest due under the subject mortgage loans from July 14, 2015, until the date of entry of an amended judgment of foreclosure and sale.
MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.