BANK OF NEW YORK MELLON v. Jessica Boissard, appellant. (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jessica Boissard appeals from an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated April 12, 2022.  The order granted the plaintiff's motion to extend the time to conduct the foreclosure sale of the subject property and denied the cross-motion of the defendant Jessica Boissard pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

In this mortgage foreclosure action, the plaintiff moved to extend the time to conduct the foreclosure sale of the subject property pursuant to a judgment of foreclosure and sale dated April 17, 2018.  The defendant Jessica Boissard (hereinafter the defendant) opposed the motion and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her for failure to comply with RPAPL 1351 and the terms of the judgment of foreclosure and sale.  The Supreme Court granted the motion and denied the cross-motion.  The defendant appeals.

As amended effective December 20, 2016, RPAPL 1351(1) requires that a judgment direct the sale of the subject property within 90 days (see L 2016, ch 73, part Q, § 8 [eff Dec. 20, 2016]).  However, under CPLR 2004, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.”  “In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” (Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963, 77 N.Y.S.3d 439 [internal quotation marks omitted];  see Tewari v. Tsoutsouras, 75 N.Y.2d 1, 11–12, 550 N.Y.S.2d 572, 549 N.E.2d 1143;  C Castle Group Corp. v. Herzfeld & Rubin, P.C., 211 A.D.3d 1006, 1007, 181 N.Y.S.3d 313).  Here, the sale of the subject property was scheduled within the 90–day period required by the statute, but was stayed when the defendant filed for bankruptcy, and the defendant did not establish any prejudice arising from the delay.  Therefore, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to extend the time to conduct the sale of the subject property (see Wells Fargo Bank, N.A. v. Malik, 203 A.D.3d 1110, 1111–1112, 166 N.Y.S.3d 38).  For the same reasons, the court properly denied the defendant's cross-motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her.

IANNACCI, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.