Opinion
2017–12592 Index No. 508237/14
08-26-2020
NATIONSTAR MORTGAGE, LLC, Respondent, v. Anthony DUNN, et al., Defendants, Blue Realty & Services Group Corp., Appellant.
Avinoam Rosenfeld, Lawrence, NY, for appellant. McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (David Gantz of counsel), for respondent.
Avinoam Rosenfeld, Lawrence, NY, for appellant.
McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (David Gantz of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Blue Realty & Services Group Corp. appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Noach Dear, J.), dated September 5, 2017. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court also dated September 5, 2017, granted that branch of the plaintiff's motion which was to confirm the referee's report, confirmed the referee's report, and directed the referee to pay the plaintiff or the plaintiff's attorney the sum of $968,274.96 from the proceeds of the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage given by the defendant Anthony Dunn, as security for a note in the principal amount of $616,859. Dunn allegedly defaulted on his monthly mortgage payment due June 1, 2009, and on the payments due thereafter. The defendant Blue Realty & Services Group Corp. (hereinafter Blue Realty), which acquired title to the subject property from Dunn by deed dated April 9, 2013, answered the complaint. Following the issuance of an order of reference, the referee issued a report finding that the plaintiff was due the sum of $968,274.96, inclusive of interest in the amount of $304,332.30, running from May 1, 2009, to May 31, 2016. The plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. In an order dated September 5, 2017, the Supreme Court granted the plaintiff's motion and, in an order and judgment of foreclosure and sale dated the same day, the court, among other things, confirmed the referee's report and awarded the plaintiff the sum of $968,274.96. Blue Realty appeals.
The Supreme Court did not improvidently exercise its discretion in adopting the referee's computation of the amount owed to the plaintiff. "In 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" ( Greenpoint Mtge. Corp. v. Lamberti, 155 A.D.3d 1004, 1005–1006, 66 N.Y.S.3d 32, quoting Dayan v. York, 51 A.D.3d 964, 965, 859 N.Y.S.2d 673 ; see CPLR 5001[a] ; Citicorp Trust Bank, FSB v. Vidaurre, 155 A.D.3d 934, 934–935, 65 N.Y.S.3d 237 ). Contrary to Blue Realty's contention, any delay attributable to the plaintiff's predecessors in interest prior to the commencement of this action, which was timely commenced by the plaintiff within the six-year statute of limitations, does not warrant the cancellation of interest that accrued on the mortgage note after May 1, 2009 (see Prompt Mtge. Providers of N. Am., LLC v. Zarour, 155 A.D.3d 912, 915, 64 N.Y.S.3d 106 ; U.S. Bank N.A. v. Zembova, 137 A.D.3d 1010, 1011, 27 N.Y.S.3d 611 ; Bank of Am., N.A. v. Lucido, 114 A.D.3d 714, 715, 981 N.Y.S.2d 433 ; cf. BAC Home Loans Servicing, L.P. v. Jackson, 159 A.D.3d 861, 863, 74 N.Y.S.3d 59 ; Greenpoint Mtge. Corp. v. Lamberti, 155 A.D.3d at 1005–1006, 66 N.Y.S.3d 32 ; Deutsche Bank Trust Co., Ams. v. Stathakis, 90 A.D.3d 983, 984, 935 N.Y.S.2d 651 ).
Blue Realty's remaining contentions are without merit.
LEVENTHAL, J.P., ROMAN, COHEN and MILLER, JJ., concur.