BANK v. GIVENS (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant John Givens appeals from an order of the Supreme Court, Rockland County (Sherri I. Eisenpress, J.), dated November 4, 2022.  The order granted the plaintiff's motion pursuant to CPLR 2004 to extend the time to conduct a foreclosure sale of the subject property to the extent of extending the time to conduct the sale to 90 days from the date of the order and denied the cross-motion of the defendant John Givens to toll the accrual of interest on the subject mortgage loan.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying the cross-motion of the defendant John Givens to toll the accrual of interest on the subject mortgage loan, and substituting therefor a provision granting the cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020;  as so modified, the order is affirmed, without costs or disbursements.

In March 2016, the plaintiff commenced this action against the defendant John Givens (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Rockland County (hereinafter the property).  On November 19, 2019, the Supreme Court issued an order and judgment of foreclosure and sale, which directed that the property be sold at auction within 90 days of the date thereof, or by February 17, 2020.  The foreclosure sale, however, was not held within that time period.  On January 21, 2020, the sale was scheduled, but the plaintiff “requested [that] the sale [ ] be postponed” so that the plaintiff could conduct “an internal review of the file.”  In June 2022, the plaintiff moved pursuant to CPLR 2004 to extend the time to conduct the foreclosure sale.  The defendant opposed the motion and cross-moved to toll the accrual of interest on the subject mortgage loan.  Specifically, the defendant argued that the court should toll the accrual of interest on the subject mortgage loan for the period of time after the expiration of the 90–day deadline to conduct the foreclosure sale.  By order dated November 4, 2022, the court granted the plaintiff's motion to the extent of extending the time to conduct the foreclosure sale to 90 days from the date of the order and denied the defendant's cross-motion.  The defendant appeals.

“RPAPL 1351(1) was amended, effective December 20, 2016, to provide that a judgment of foreclosure and sale shall direct that the subject property be sold within ninety days of the date of the judgment” (Nationstar Mtge., LLC v. Dunn, 230 A.D.3d 1327, 1329, 217 N.Y.S.3d 238 [internal quotation marks omitted]).  “Statutory time frames ․ are not options, they are requirements, to be taken seriously by the parties” (Bank of Am., N.A. v. Cord, 214 A.D.3d 934, 935, 187 N.Y.S.3d 68 [internal quotation marks omitted]).  However, pursuant to 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” (Bank of N.Y. Mellon v. Ramsamooj, 219 A.D.3d 1402, 1403, 196 N.Y.S.3d 148 [internal quotation marks omitted]).

Here, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 2004 to extend the time to conduct the foreclosure sale to the extent of extending the time to conduct the sale to 90 days from the date of the order (see Ditech Fin., LLC v. Connolly, 230 A.D.3d 647, 649, 218 N.Y.S.3d 394;  Bank of N.Y. Mellon v. Ramsamooj, 219 A.D.3d at 1403, 196 N.Y.S.3d 148).  The plaintiff demonstrated that “the delay [wa]s largely attributable to, among other things, ․ the COVID–19 pandemic” (Nationstar Mtge., LLC v. Dunn, 230 A.D.3d at 1330, 217 N.Y.S.3d 238;  see Bank of N.Y. Mellon v. Adam P10tch, LLC, 226 A.D.3d 497, 498, 209 N.Y.S.3d 360;  Flagstar Bank, FSB v. Stewart, 226 A.D.3d 1107, 1108, 208 N.Y.S.3d 355).  Further, the defendant failed to establish that the delay caused him any prejudice (see Bank of N.Y. Mellon v. Ramsamooj, 219 A.D.3d at 1403, 196 N.Y.S.3d 148;  Bank of Am., N.A. v. Cord, 214 A.D.3d at 936, 187 N.Y.S.3d 68).

“A foreclosure action is equitable in nature and triggers the equitable powers of the court” (Deutsche Bank Trust Co. Ams. v. Gonzales, 215 A.D.3d 636, 639, 188 N.Y.S.3d 72 [internal quotation marks omitted]).  “Once equity is invoked, the court's power is as broad as equity and justice require” (Onewest Bank, FSB v. Kaur, 172 A.D.3d 1392, 1394, 99 N.Y.S.3d 637 [internal quotation marks omitted]).  Thus, “[i]n 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” (Wells Fargo Bank, N.A. v. Daniel, 231 A.D.3d 899, 901, 220 N.Y.S.3d 779 [internal quotation marks omitted]).  “Further, a tolling and cancellation of interest may also be warranted where there is an unexplained delay in prosecution of a mortgage foreclosure action” (Deutsche Bank Trust Co. Ams. v. Knights, 231 A.D.3d 1016, 1018, 221 N.Y.S.3d 548 [internal quotation marks omitted]).  “[A] plaintiff should not benefit financially, in the form of accrued interest, from an unexplained delay in the prosecution of a mortgage foreclosure action” (Wells Fargo Bank, N.A. v. Daniel, 231 A.D.3d at 901–902, 220 N.Y.S.3d 779).

Here, contrary to the plaintiff's contention, the Supreme Court improvidently exercised its discretion in denying the defendant's cross-motion to toll the accrual of interest on the subject mortgage loan (see Deutsche Bank Trust Co. Ams. v. Knights, 231 A.D.3d at 1018–1019, 221 N.Y.S.3d 548;  Wells Fargo Bank, N.A. v. Daniel, 231 A.D.3d at 902, 220 N.Y.S.3d 779).  The plaintiff asserted that the COVID–19 pandemic impacted its ability to proceed with the sale of the property (see e.g. Trento 67, LLC v. OneWest Bank, N.A., 230 A.D.3d 1, 4, 9, 214 N.Y.S.3d 689;  Flagstar Bank, FSB v. Stewart, 226 A.D.3d 1107, 1108, 208 N.Y.S.3d 355).  However, the pandemic-related stays on foreclosure sales did not go into effect until after the expiration of the 90–day deadline to conduct the sale of the property (see Deutsche Bank Trust Co. Ams. v. Knights, 231 A.D.3d at 1018, 221 N.Y.S.3d 548 ), and the plaintiff failed to adequately explain its failure to conduct the sale within that 90–day period (see U.S. Bank, N.A. v. Peralta, 191 A.D.3d 924, 926, 142 N.Y.S.3d 568;  Danielowich v. PBL Dev., 292 A.D.2d 414, 415, 739 N.Y.S.2d 408).  Under the circumstances presented, the court should have granted the defendant's cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020 (see Wells Fargo Bank, N.A. v. Daniel, 231 A.D.3d at 902, 220 N.Y.S.3d 779;  Danielowich v. PBL Dev., 292 A.D.2d at 415, 739 N.Y.S.2d 408).

DILLON, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.