Papers considered: 1. Order to Show Cause dated April 25, 2024, Emergency Affirmation of Joshua Bronstein, Esq dated April 24, 2024; Emergency Affidavit of Joseph Stern dated April 24, 2024, with Exhibit A; Emergency Affidavit of Rochel Stern dated April 24, 2024; and Affirmation of Joshua Bronstein, Esq., Pursuant to Rule 202.7F, dated April 24, 2024, with Exhibit B. 2. Attorney Affirmation of Virginia Grapensteter, Esq., in Opposition, dated June 6, 2024. 3. Reply Affirmation of Joshua Bronstein, Esq., dated June 9, 2024. DECISION/ORDER In this mortgage foreclosure action, Defendants, Rochel Stern and Joseph Stern, move for an injunction preventing the foreclosure sale from proceeding due to the failure of Plaintiff, Plaza Home Mortgage, Inc., (“Plaza”), to comply with the 90-day sale provisions of RPAPL §1351(1), and because the Defendants are in the process of modifying their loan. The Sterns also move for a tolling of interest during a period of delay they attribute to Plaza. Plaza opposes. BACKGROUND This Court (Fisher, J.) granted a Judgment of Foreclosure and Sale dated June 10, 2021, which directed the Foreclosure Sale to occur within 90 days thereof. An Order (Silverman, J.) dated October 19, 2022, granted a one-year extension, nunc pro tunc, to conduct the sale. By Order dated September 12, 2023, this Court amended the Judgment of Foreclosure and Sale to correct a scrivener’s error as to the amount due. That Order also directed that the premises be sold within 90 days of entry. The Order was entered on September 13, 2023. Thereafter, Plaza issued a Notice of Sale, dated September 27, 2023, for a foreclosure sale to be conducted on November 28, 2023. Plaza did not conduct the sale on November 28, 2023. On December 28, 2023, Plaza filed a Notice of Sale dated November 28, 2023, indicating that a foreclosure sale would be conducted on January 30, 2024. Five days prior to the foreclosure sale scheduled for January 30, 2024, Defendants moved by Order to Show Cause for a stay of the foreclosure sale and dismissal of the action due to a lack of personal jurisdiction. This Court did not grant the temporary stay of sale requested with the Order to Show Cause, but Plaza cancelled it voluntarily. By Decision/Order dated April 15, 2024, this Court denied the motion to dismiss. On March 18, 2024, while the motion to dismiss was pending, Plaza filed a Notice of Sale dated January 30, 2024, indicating that a foreclosure sale will be conducted on April 30, 2024. The Order to Show Cause dated April 25, 2024, enjoined the foreclosure sale scheduled for April 30, 2024. Plaza contends that the motion is rendered moot because the sale was cancelled. Plaza has not cross-moved for an extension of time to conduct the sale, indicating it will make a separate application for such relief. DISCUSSION/VIOLATION OF RPAPL §1351 RPAPL §1351(1) requires a judgment of foreclosure and sale direct the foreclosure sale to occur within 90 days thereof. As the 90-day time frame directed by the September 13, 2023, Order has passed, Plaza must move for an extension of time. The sale scheduled for April 30, 2024, has been cancelled. Plaza has not cross-moved for an extension thus, the Court agrees that the motion to enjoin the foreclosure sale is now moot. There currently is no sale scheduled and none is authorized. DISCUSSION/STAY OF SALE TO ALLOW FOR LOSS MITIGATION The Sterns’ motion for a stay of the foreclosure sale to pursue loss mitigation is rendered academic by the cancellation of the April 30, 2024, sale. There is nothing preventing the parties from reaching a negotiated resolution of this matter. DISCUSSION/TOLLING OF INTEREST The Sterns move for a tolling of interest for the period from October 19, 2022, through April 30, 2024, due to Plaza’s unexplained delay in conducting the foreclosure sale. In U.S. Bank NA v. Peralta, 191 AD3d 924, 925-926 (2d Dept., 2021), the Appellate Division, Second Department, held that Supreme Court improvidently exercised its discretion in denying the defendant’s motion for a tolling of interest occasioned by, among other delays, an unexplained 19-month delay in moving for an extension of time to conduct a foreclosure sale. In so holding, the Court explained: “A foreclosure action is equitable in nature (see Notey v. Darien Constr. Corp., 41 NY2d 1055, 364 N.E.2d 833, 396 N.Y.S.2d 169). As relevant here, CPLR 5001(a) provides that “in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.” The exercise of the court’s discretion in determining the appropriate interest is governed by the particular facts in each case (see Greenpoint Mtge. Corp. v. Lamberti, 155 AD3d 1004, 1005-1006; Dayan v. York, 51 AD3d 964, 965, 859 N.Y.S.2d 673). Here, in view of the lengthy, unexplained delays by the plaintiff in prosecuting this action, the plaintiff should recover no interest for the approximately 64-month period from May 2008, when this action was commenced, until October 3, 2013, when the plaintiff moved to vacate the prior order of reference and for a new order of reference. In addition, the plaintiff should recover no interest for the approximately 19-month period from October 23, 2015, when the bankruptcy stay was lifted until May 8, 2017, when the plaintiff moved for leave to file a late notice of sale and for an extension of time to sell the premises (see Greenpoint Mtge. Corp. v. Lamberti, 155 AD3d at 1005-1006; US Bank N.A. v. Williams, 121 AD3d 1098, 1102-1103, 995 N.Y.S.2d 172; Dayan v. York, 51 AD3d at 965-966; Danielowich v. PBL Dev., 292 AD2d 414, 415, 739 N.Y.S.2d 408; Dollar Fed. Sav. & Loan Assn. v. Herbert Kallen, Inc., 91 AD2d 601, 602, 456 N.Y.S.2d 430).” Likewise, the Second Department, in Krupnick v. Romano, 220 AD3d 921(2d Dept., 2023), held that interest should be tolled for an approximately 10-year period during which plaintiff failed to conduct the foreclosure sale. Plaintiff therein had delayed the foreclosure sale because he perceived market conditions as unfavorable to a sale where his mortgage was secondary to another mortgage, leading him to conclude he would not recover much by pursuing a sale. Under these circumstances, the Court concluded it would be inequitable to compel defendant to pay interest during the delay. See also, Deutsche Bank Natl. Trust Co. v. Armstrong, 218 A.D.3d 738, 739 (2d Dept., 2023) (interest tolled during a period of unexplained delay in prosecuting the foreclosure action); Dayan v. York, 51 AD3d 964, 965-966 (2d Dept., 2008) (interest tolled during plaintiff’s voluntary delay in pursuing foreclosure sale). The Court notes that the initial period of delay, the 90 days following the June 10, 2021, Judgment of Foreclosure and Sale, was occasioned by COVID-19-related foreclosure moratoriums. Plaza attributes the period of delay following the February 18, 2022, Order to processing the Sterns’ application for loss mitigation, which was declined in August 2022. Plaza promptly thereafter moved for another extension of time to conduct the sale. The Order of October 19, 2022, granted Plaza a one-year period to conduct the sale. A new Notice of Sale was thereafter issued, indicating a sale date of December 7, 2022. Plaza cancelled that sale because counsel for the Sterns contacted Plaza advising that the Sterns were in process of gathering the money to pay off the loan. A new Notice of Sale, dated December 8, 2022, was filed indicating a sale date of January 24, 2023. No sale was conducted on January 24, 2023. Plaza indicates that, upon the Sterns’ failure to pay off the loan and its discovery of a scrivener’s error, a new motion was required to extend the time for the sale and to correct the error. That motion was filed on May 11, 2023. Plaza does not state when it learned the Sterns could not pay off the loan or when it learned of the scrivener’s error. Plaza has not explained why it needed until May 11, 2023, to make its motion. Following the September 13, 2023, Order, Plaza scheduled a sale for January 30, 2024. Plaza fails to explain why the sale was not scheduled within 90 days of the Order. By the time the Sterns moved for dismissal on January 25, 2024, the 90-day period to conduct the sale had already expired. Nonetheless, Plaza justifiably cancelled the sale scheduled for January 30, 2024, due to the Sterns’ contention that the Court lacked personal jurisdiction and the expiration of the 90-day period provided by the September 13, 2023, Order. Consequently, the Court finds periods of unexplained delay attributable to Plaza from on or about December 2022 through May 11, 2023 and from September 13, 2023 through January 25, 2024. There is no suggestion that these delays are the product of wrongful conduct by Plaza. See, BAC Home Loans Servicing LP v. Jackson, 159 AD3d 861, 862 (2d Dept., 2018). These two periods of approximately 4½ months each, are relatively short compared to the 83-month delay in U.S. Bank NA v. Peralta, supra; the 10-year delay in Krupnick v. Romano, supra; the more than 4-year delay in Deutsche Bank Natl. Trust Co. v. Armstrong, supra; or the many years of intentional delay in Dayan v. York, supra. Nonetheless, “[S]tatutory time frames-like court-ordered time-frames…-are not options, they are requirements, to be taken seriously by the parties” (Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726, 819 N.E.2d 995, 786 N.Y.S.2d 379); Bank of Am., N.A. v. Cord, 214 A.D.3d 934, 935 (2d Dep’t., 2023). Accordingly, in the exercise of its discretion, the Court grants the Defendants’ motion to the extent of tolling 4 months of interest, for failing to conduct the sale during the 90-day period immediately following the September 13, 2023, Order. This period was Plaza’s second unexplained delay and was both a court-ordered and a statutorily required time frame. Any other contentions of the parties have been considered and are deemed to be without merit or have been rendered academic. Accordingly, it is hereby ORDERED, that Defendants’ motion to enjoin the sale of the subject premises is denied as moot; and it is further ORDERED, that Defendants’ motion to stay the foreclosure sale to allow time to pursue loss mitigation efforts is rendered academic; and it is further ORDERED, that in equity and in the exercise of the Court’s discretion, Defendants’ motion to toll interest is granted for the four-month period from September 14, 2023 through January 14, 2024, and is otherwise denied as to the remainder of the period claimed; and the Referee is directed to deduct four months’ interest from the amount of post-judgment interest directed to be paid to Plaza by Paragraph “Fourth” on Page 6 of the Judgment of Foreclosure and Sale dated June 10, 2021; and it is further ORDERED, that Plaza is directed to move for an extension of time to conduct the foreclosure sale within 14 days of the date of this Decision/Order. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations, pursuant to CPLR §2220, regarding filing and entry of same, but that does not relieve the parties of their obligations regarding service of same with notice of entry thereon. Dated: July, 2024
