Opinion
62636/2014
07-25-2019
WEBSTER BANK, N.A., Plaintiff, v. Jane G. LOEFFLER a/k/a Jane Loeffler, Arthur Loeffler a/k/a Arthur L. Loeffler, Manufacturers and Traders Trust Company, Capital One Bank USA NA, Gemini Capital Group LLC, Commissioner of Taxation and Finance Civil Enforcement Co ATC, Branch Banking and Trust Company, and Brad Loeffler, Defendants.
DAVID A. GALLO & ASSOCIATES LLP, Roslyn Heights, NY 11577, for Attorneys for Plaintiff 99 Powerhouse Road First Floor. HOWARD B ARBER ESQ, 64 Hilton Ave, Hempstead, NY 11550, for Attorney for Defendants Jane G. Loeffler and Arthur L. Loeffler. SCHILLER, KNAPP, LEFKOWITZ & HERTZEL, LLP, 950 New Loudon Rd., Ste. 109, Latham, NY 12110, Brad Loeffler s/h/a John Doe #1, Daniel P. O'Brien, Esq./Referee, 168 Smithtown Blvd, Nesconsett, NY 11767, for Attorney for Defendant Manufacturers and Traders Trust Company.
DAVID A. GALLO & ASSOCIATES LLP, Roslyn Heights, NY 11577, for Attorneys for Plaintiff 99 Powerhouse Road First Floor.
HOWARD B ARBER ESQ, 64 Hilton Ave, Hempstead, NY 11550, for Attorney for Defendants Jane G. Loeffler and Arthur L. Loeffler.
SCHILLER, KNAPP, LEFKOWITZ & HERTZEL, LLP, 950 New Loudon Rd., Ste. 109, Latham, NY 12110, Brad Loeffler s/h/a John Doe #1, Daniel P. O'Brien, Esq./Referee, 168 Smithtown Blvd, Nesconsett, NY 11767, for Attorney for Defendant Manufacturers and Traders Trust Company.
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order extending plaintiff's time to schedule a foreclosure sale ; Notice of Motion/ Order to Show Cause and supporting papers (Doc #90-94); Affirmation in Opposition (Doc #95)); Affirmation in Reply and supporting papers (Doc #96-99); it is,
ORDERED that plaintiff's application to extend the time to conduct the foreclosure sale is granted; and it is further
ORDERED that the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of entry of this order; and it is further
ORDERED that if the referee does not conduct the sale within 90 days of the date of entry of this order, in accordance with CPLR 2004, the time fixed by RPAPL § 1351(1) is extended for the referee to conduct the sale as soon as reasonably practicable.
This is an action to foreclose a mortgage on residential real property located at 8 Brandon Drive, Commack, Suffolk County, New York. The prior history of this action is contained in the court's decision dated December 8, 2016 on plaintiff's motion for summary judgment (Seq. #001). At that time the court granted plaintiff summary judgment and order of reference pursuant to RPAPL § 1321. Plaintiff's motion for judgment of foreclosure and sale (Seq. #002) was granted April 9, 2018 and the referee was directed to conduct the foreclosure sale within ninety days from the date of the judgment pursuant to RPAPL 1351(1).
Plaintiff now moves for an extension of the time within which the referee is to conduct the foreclosure sale of the property arguing that the sale was not conducted due to the file being on hold for loss mitigation review from June 12, 2018 until December 13, 2018 at which time defendants Jane G. Loeffler and Arthur Loeffler ("defendants") were denied loss mitigation. Defendants oppose the motion by submission of their attorney's affirmation arguing plaintiff's acted in bad faith and requesting a hearing in regard to the purported bad faith, as well counsel argues plaintiff's delay in scheduling the foreclosure sale has prejudiced defendants. In reply plaintiff argues there was no bad faith, defendants loss mitigation application, filed after judgment of foreclosure and sale, was reviewed and denied and defendants have not been prejudiced.
To determine if plaintiff failed to negotiate in good faith the totality of circumstances must show plaintiff did not conduct a meaningful effort to reach a resolution (see U.S. Bank, N.A. v. Sarmiento , 121 AD3d 187 [2d Dept 2014] ; Citimortgage, Inc. v. Pugliese , 143 AD3d 659 [2d Dept 2016] ; PNC Bank, N.A. v. Campbell , 142 AD3d 1147 [2d Dept 2016] ; Citimortgage v. Rockefeller , 155 AD3d 998 [2d Dept 2017] ). In order to be entitled to a hearing on the issue of failing to negotiate in good faith, defendant must sufficiently allege that the totality of circumstances demonstrated that plaintiff's conduct did not constitute a meaningful effort at reaching a resolution (see US Bank, N. A. v. Cohen , 156 AD3d 844 [2d Dept 2017] ). Where defendant presents an affidavit that raises factual questions as to plaintiff negotiating in good faith, and plaintiff's response is insufficient, the court should hold hearing to determine the factual issue (see Citimortgage, Inc. v. Nimkoff , 159 AD3d 869 [2d Dept 2018] ). Here defendant failed to submit any proof to support such a conclusion. The affirmation of defendant's counsel, which is not based upon personal knowledge of the facts, is of no probative or evidentiary significance (see U.S. Natl. Bank Assn. v. Melton , 90 AD3d 742 [2011] ; Onewest Bank, FSB v. Michel , 143 AD3d 869 [2d Dept 2016] ). Notwithstanding the lack of proof, the allegations set forth in counsel's affirmation fail to set forth any basis to for the court to conduct such a hearing.
CPLR 2004 permits the court to 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. Due to defendants filing of a loss mitigation application which was under review for approximately six months, plaintiff has demonstrated good cause for its delay in conducting the foreclosure sale. As stated, defendants argument that they have been prejudiced, set forth only in their attorney's affirmation, is of no probative or evidentiary significance. Nevertheless the court is not convinced that defendants were prejudiced by this delay, which unfortunately did not conclude in defendants' favor.
Accordingly plaintiff's application is granted and the proposed order, as modified by the court, is signed contemporaneously herewith.