DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAN HOME MORTGAGE ASSETS TRUST 2007 MORTGAGE BACKED PASS THROUGH CERTIFICATES SERIES 2007 v. DOUG FRESH ARLENE DAVIS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC (2024)

Charles Wallshein, Melville, for appellant.

LOGS Legal Group LLP, Rochester (Ellis M. Oster of counsel), for respondent.

Order, Supreme Court, New York County (Francis A. Kahn, J.), entered May 25, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to confirm the Referee's report awarding interest from May 4, 2015 to August 8, 2022 and at the rate of 7.625%, and denied the cross-motion of defendant Doug E. Fresh, as administrator, to reject the report to the extent it granted such interest, unanimously affirmed, without costs.

The motion court providently exercised it discretion in determining that plaintiff was responsible for certain delays in prosecution of this foreclosure action before May 4, 2015, but was not responsible for delays after that time so that tolling was not warranted (see U.S. Bank N.A. v. Beymer, 190 AD3d 445, 446 [1st Dept 2021];  U.S. Bank, N.A. v. Gendelman, 214 AD3d 928, 929–930 [2d Dept 2023] ).  The court properly took into consideration that, after the death of the original defendant and the appointment of Fresh as administrator of the estate in November 2014, Fresh did not move to have himself substituted as defendant (CPLR 1021) but instead opposed substitution.

Defendant's contentions that the Referee applied the wrong rate of interest under the note and relied on illegible documents are improperly raised for the first time on appeal and we decline to consider them (see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209 [1st Dept 1996], lv denied 88 N.Y.2d 811 [1996];  Carey v. Toy Indus.  Assn. TM, Inc., 216 AD3d 404, 405 [1st Dept 2023] ).