GMAC Mortg., LLC v. Yun

206 A.D.3d 798

171 N.Y.S.3d 505

GMAC MORTGAGE, LLC, respondent,

v.Jenny YUN, etc., appellant, et al., defendants.

2019–04231

Index No. 5529/08

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 28, 2022

June 15, 2022

Jenny Yun, Hicksville, NY, appellant pro se.

Fein, Such & Crane, LLP, Westbury, NY (Michael S. Hanusek of counsel), for respondent.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jenny Yun appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 20, 2019. The order denied that defendant's motion, in effect, to toll the accrual of interest between March 29, 2009, and September 21, 2016, and to stay the foreclosure sale of the subject property.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the motion of the defendant Jenny Yun which was, in effect, to toll the accrual of interest between March 29, 2009, and September 21, 2016, and substituting therefor a provision granting that branch of the motion to the extent of tolling the accrual of interest between October 9, 2009, and September 21, 2016; as so modified, the order is affirmed, with costs to the defendant Jenny Yun.

In March 2008, the plaintiff commenced this action to foreclose a consolidated mortgage against, among others, the defendant Jenny Yun (hereinafter the defendant). After the defendant failed to appear or answer the complaint, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for an order of reference in an order entered October 9, 2009 (hereinafter the order of reference). In an order and judgment of foreclosure and sale entered December 17, 2016, the court, among other things, granted the plaintiff's motion for a judgment of foreclosure and sale, and directed the sale of the subject property. The defendant thereafter moved, in effect, to toll the accrual of interest between March 29, 2009, and September 21, 2016, and to stay the foreclosure sale of the property. In an order entered February 20, 2019, the court denied the motion, and the defendant appeals.

"A foreclosure action is equitable in nature and triggers the equitable powers of the court" ( Bank of N.Y. Mellon v. George, 186 A.D.3d 661, 663, 127 N.Y.S.3d 310 ). " ‘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,’ such as where the plaintiff's conduct has prejudiced the defendant" ( id. at 663–664, 127 N.Y.S.3d 310 [citations omitted], quoting BAC Home Loans Servicing, L.P. v. Jackson, 159 A.D.3d 861, 862, 74 N.Y.S.3d 59 ). "Further, a tolling and cancellation of interest may also be warranted where there is an unexplained delay in pr...