Opinion
June 12, 1995
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs; and it is further,
Ordered that the parties and their counsel are directed to appear before this Court on June 21, 1995, at 12:00 Noon, to be heard on the issue of the imposition of appropriate costs or sanctions, if any, pursuant to 22 NYCRR 130-1.1.
We agree with the Supreme Court that Philip Chu demonstrated that he made timely mortgage payments to the appellant Green Point Savings Bank (hereinafter Green Point), that Green Point personnel improperly credited certain of those payments to another mortgage of Mr. Chu, and that Green Point consequently was in error in determining that Mr. Chu had defaulted on the subject mortgage. Moreover, since no default actually occurred, since Green Point commenced the foreclosure action even after receiving some documentation indicating that the payments had in fact been made, and since Green Point maintained the action even after its representative advised the New York State Banking Department that the action would be discontinued, the Supreme Court properly dismissed the foreclosure action as baseless.
It would, therefore, appear that this entire appeal by Green Point is frivolous within the meaning of 22 NYCRR 130-1.1 (see, Belsky v. Belsky, 172 A.D.2d 576). Accordingly, we direct the parties and their counsel to appear before this Court on June 21, 1995, at 12:00 Noon, to be heard on the issue of appropriate costs or sanctions, including appellate counsel fees, pursuant to 22 NYCRR 130-1.1, if any (see, Belsky v. Belsky, supra; McMurray v. McMurray, 157 A.D.2d 773). Sullivan, J.P., Miller, Thompson and Joy, JJ., concur.