People's United Bank v. Patio Gardens III, LLC

189 A.D.3d 1622

135 N.Y.S.3d 271 (Mem)

PEOPLE'S UNITED BANK, etc., respondent,

v.PATIO GARDENS III, LLC, appellant, et al., defendants.

2017–09688

Index No. 8058/12

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

Argued—October 2, 2020

December 30, 2020

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...