| Dayan v York |
| 2008 NY Slip Op 04827 [51 AD3d 964] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Naima Dayan, Appellant, v Joseph York et al.,Respondents. |
—[*1] Joseph York, Holliswood, N.Y., respondent pro se.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by her brief, from somuch of an order of the Supreme Court, Queens County (Strauss, J.), dated November 14, 2006,as granted that branch of the motion of the defendant Joseph York which was to cancel anyaccrued interest and penalties to her that accrued from the date of entry of the judgment offoreclosure and sale.
Ordered that the order is affirmed insofar as appealed from, with costs.
The property subject to this mortgage foreclosure action was the marital home of thedefendants Joseph York and Esther York and is subject to equitable distribution in a pendingmatrimonial action between the defendants. This action was commenced by Republic Bank forSavings (hereinafter Republic) against the defendants in January 1994. The plaintiff EstherYork's mother and her late husband purchased the mortgage from Republic on January 20, 1995and did not discontinue the foreclosure proceedings. The plaintiff was substituted for Republic inthe foreclosure proceeding and did not seek a judgment of foreclosure and sale until November28, 2001. The judgment of foreclosure and sale awarded the plaintiff accrued interest andpenalties. Interest and penalties continued to accrue after the judgment was entered. As of thedate of Joseph York's motion, inter alia, to cancel any accrued interest and penalties to theplaintiff, the plaintiff had not taken any action to enforce the judgment so that her daughterEsther and her grandchildren could continue living in the house.[*2]
In an action of an equitable nature, the recovery ofinterest is within the court's discretion (see CPLR 5001 [a]; Danielowich v PBL Dev.,292 AD2d 414, 415 [2002]). The exercise of that discretion will be governed by theparticular facts in each case, including any wrongful conduct by either party (see Danielowichv PBL Dev., 292 AD2d at 415; Sloane v Gape, 216 AD2d 285, 286 [1995]; SouthShore Fed. Sav. & Loan Assn. v Shore Club Holding Corp., 54 AD2d 978 [1976]). Underthe unusual circumstances of this case, it would be unconscionable to charge Joseph York withaccrued interest and penalties for the plaintiff's delay in completing the foreclosure action (seegenerally Gasco Corp. & Gordian Group of Hong Kong v Tosco Props., 236 AD2d 510, 512[1997]; Griffo v Swartz, 61 Misc 2d 504, 512-513 [1969]). Accordingly, the SupremeCourt properly granted that branch of Joseph York's motion which was to cancel any accruedinterest and penalties to the plaintiff that accrued after the judgment was entered.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Skelos, Santucci andBelen, JJ., concur.