Opinion
210 Index No. 850339/13 Case No.2022–02123
08-24-2023
The BANK OF NEW YORK MELLON formerly known as The Bank of New York AS TRUSTEE FOR the CERTIFICATEHOLDERS OF CWALT INC., ALTERNATIVE LOAN TRUST 2007–7T2, MORTGAGE PASS–THROUGH CERTIFICATES, SERIES 2007–7T2, Plaintiff–Respondent, v. Chester B. DAVIS, Sr., Defendant–Appellant.
Biolsi Law Group, P.C., New York (Steven Alexander Biolsi of counsel), for appellant. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore (Ruth O'Connor of counsel), for respondent.
Biolsi Law Group, P.C., New York (Steven Alexander Biolsi of counsel), for appellant.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore (Ruth O'Connor of counsel), for respondent.
Renwick, P.J., Kapnick, Gesmer, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered March 30, 2022, which, to the extent appealed from, denied defendant's motion to toll interest on the judgment of foreclosure and sale, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in declining to toll interest running on defendant's mortgage (see U.S. Bank, N.A. v. Cordero, 191 A.D.3d 490, 491, 142 N.Y.S.3d 488 [1st Dept. 2021] ; Bank of N.Y. Mellon v. George, 186 A.D.3d 661, 663, 127 N.Y.S.3d 310 [2d Dept. 2020] ). Defendant claimed that the mortgage interest should be tolled based on plaintiff's delays in bringing and prosecuting this foreclosure action. However, defendant failed to demonstrate that plaintiff caused an unexplained lengthy delay of the action or committed any wrongdoing (see Wells Fargo Bank, N.A. v. Chun Fei Lee, 208 A.D.3d 1384, 1386, 175 N.Y.S.3d 309 [2d Dept. 2022] ; GMAC Mtge., LLC v. Yun, 206 A.D.3d 798, 798–799, 171 N.Y.S.3d 505 [2d Dept. 2022] ). Plaintiff commenced this action seven months after being assigned the mortgage, and the six-month delay in filing the notice of settlement was explained by a detailed affirmation of counsel that, contrary to defendant's contention, was not "perfunctory and unsubstantiated" ( Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept. 2012] ). The delay between plaintiff's summary judgment motions was due in part to settlement negotiations in which both parties participated (see People's United Bank v. Patio Gardens III, LLC, 189 A.D.3d 1622, 1623, 135 N.Y.S.3d 271 [2d Dept. 2020] ), and we affirmed Supreme Court's previous finding that plaintiff established good cause for the delay in filing the second summary judgment motion (see Bank of N.Y. Mellon v. Davis, 209 A.D.3d 426, 174 N.Y.S.3d 835 [1st Dept. 2022] ).