| Deutsche Bank Natl. Trust Co. v Twersky |
| 2016 NY Slip Op 00473 [135 AD3d 895] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Respondent, v Esther Twersky, Appellant, et al.,Defendants. |
Lambert & Shackman, PLLC, New York, NY (Thomas C. Lambert of counsel),for appellant.
Davidson Fink LLP, Rochester, NY (Larry T. Powell of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Esther Twersky appeals from anorder of the Supreme Court, Kings County (Bunyan, J.), dated November 10, 2014,which denied her motion to dismiss the complaint insofar as asserted against her, withprejudice, as a sanction for the plaintiff's failure to negotiate in good faith.
Ordered that the order is affirmed, with costs.
In 2006, the defendant Esther Twersky (hereinafter the appellant) obtained a loan for$577,500 from First Financial Equities, Inc., and executed a note and mortgageevidencing the debt and securing payment thereunder. The appellant defaulted on herpayment obligations, and in August 2008, the plaintiff commenced this mortgageforeclosure action. Pursuant to CPLR 3408, mandatory settlement conferences were held.In February 2014, the appellant moved to dismiss the complaint insofar as assertedagainst her, with prejudice, as a sanction for the plaintiff's failure to negotiate in goodfaith. The Supreme Court denied the motion, determining that the appellant did notdemonstrate that the plaintiff failed to negotiate in good faith.
CPLR 3408 is a remedial statute, enacted in response to the 2008 mortgage crisis,which "requires only that the parties enter into and conduct negotiations in good faith"(US Bank N.A. vSarmiento, 121 AD3d 187, 200 [2014]). "[T]he issue of whether a party failedto negotiate in 'good faith' within the meaning of CPLR 3408 (f) should be determinedby considering whether the totality of the circumstances demonstrates that the party'sconduct did not constitute a meaningful effort at reaching a resolution" (id. at203; see Citibank, N.A. vBarclay, 124 AD3d 174, 177 [2014]). Here, the documentation the appellantsubmitted in support of her motion did not establish that the plaintiff failed to negotiatein good faith by, inter alia, refusing to accept the appellant's proposal of a lump sumpayment of $276,593.55 in full satisfaction of the outstanding loan balance (see Bank of N.Y. v Castillo,120 AD3d 598, 599-600 [2014]; Bank of Am., N.A. v Lucido, 114 AD3d 714 [2014]).
The parties' remaining contentions either are without merit or need not be reached[*2]in light of our determination.
Accordingly, the Supreme Court properly denied the appellant's motion to dismissthe complaint insofar as asserted against her, with prejudice, as a sanction for theplaintiff's failure to negotiate in good faith. Rivera, J.P., Dillon, Roman and Duffy, JJ.,concur.