Opinion
06-21-2017
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Soundview Home Loan Trust 2005–OPT1, Asset–Backed Certificates, Series 2005–OPT1, appellant, v. Paraskevi VARELIS, also known as Paraskevi A. Varelis, respondent, et al., defendants.
Houser & Allison, APC, New York, NY (Daniel P. Podhaskie of counsel), for appellant. Annette G. Hasapidis, South Salem, NY, for respondent.
Houser & Allison, APC, New York, NY (Daniel P. Podhaskie of counsel), for appellant.
Annette G. Hasapidis, South Salem, NY, for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and BETSY BARROS, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Baily–Schiffman, J.), dated October 29, 2014, which granted the motion of the defendant Paraskevi Varelis, also known as Paraskevi A. Varelis, pursuant to CPLR 3408(f) to impose a sanction upon it for its failure to negotiate in good faith.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing and a new determination of the motion to impose a sanction upon the plaintiff thereafter.
The plaintiff commenced this action against, among others, the defendant Paraskevi Varelis, also known as Paraskevi A. Varelis (hereinafter the defendant), seeking to foreclose a mortgage on the defendant's home in Brooklyn. As mandated by CPLR 3408(a), the plaintiff and the defendant participated in settlement conferences for the statutorily intended purpose of determining whether they could reach a "mutually agreeable resolution" (CPLR 3408[f] ). After the parties failed to reach a resolution, the defendant moved, pursuant to CPLR 3408(f), for an order imposing a sanction upon the plaintiff for failing to negotiate in good faith. The plaintiff opposed the motion. Without holding an evidentiary hearing, the Supreme Court granted the defendant's motion and imposed a sanction upon the plaintiff. The plaintiff appeals.
Here, the defendant sufficiently alleged that the totality of the circumstances demonstrated that the plaintiff failed to make a meaningful effort at reaching a resolution (see CitiMortgage, Inc. v. Pugliese, 143 A.D.3d 659, 662, 38 N.Y.S.3d 576 ; LaSalle Bank, N.A. v. Dono, 135 A.D.3d 827, 829, 24 N.Y.S.3d 144 ; US Bank N.A. v. Sarmiento, 121 A.D.3d 187, 203, 991 N.Y.S.2d 68 ). The defendant submitted evidence that demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided (see Aurora Loan Servs., LLC v. Diakite, 148 A.D.3d 662, 48 N.Y.S.3d 490 ; LaSalle Bank, N.A. v. Dono, 135 A.D.3d at 828, 24 N.Y.S.3d 144 ; Onewest Bank, FSB v. Colace, 130 A.D.3d 994, 996, 15 N.Y.S.3d 109 ). In opposition, the plaintiff submitted evidence which controverted the defendant's account of the settlement negotiations. Therefore, the Supreme Court should have held a hearing to determine the issue (see Onewest Bank, FSB v. Colace, 130 A.D.3d at 996, 15 N.Y.S.3d 109 ; cf. LaSalle Bank, N.A. v. Dono, 135 A.D.3d at 829, 24 N.Y.S.3d 144 ). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing and a new determination of the defendant's motion thereafter.