| Deutsche Bank Natl. Trust Co. v Varelis |
| 2017 NY Slip Op 05066 [151 AD3d 934] |
| June 21, 2017 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee forSoundview Home Loan Trust 2005-OPT1, Asset-Backed Certificates, Series 2005-OPT1,Appellant, v Paraskevi Varelis, Also Known as Paraskevi A. Varelis, Respondent, et al.,Defendants. |
Houser & Allison, APC, New York, NY (Daniel P. Podhaskie of counsel), forappellant.
Annette G. Hasapidis, South Salem, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Baily-Schiffman, J.), dated October 29, 2014, which granted the motion ofthe defendant Paraskevi Varelis, also known as Paraskevi A. Varelis, pursuant to CPLR 3408 (f)to impose a sanction upon it for its failure to negotiate in good faith.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Kings County, for a hearing and a new determination of the motion to impose asanction upon the plaintiff thereafter.
The plaintiff commenced this action against, among others, the defendant Paraskevi Varelis,also known as Paraskevi A. Varelis (hereinafter the defendant), seeking to foreclose a mortgageon the defendant's home in Brooklyn. As mandated by CPLR 3408 (a), the plaintiff and thedefendant participated in settlement conferences for the statutorily intended purpose ofdetermining whether they could reach a "mutually agreeable resolution" (CPLR 3408 [f]). Afterthe parties failed to reach a resolution, the defendant moved, pursuant to CPLR 3408 (f), for anorder imposing a sanction upon the plaintiff for failing to negotiate in good faith. The plaintiffopposed the motion. Without holding an evidentiary hearing, the Supreme Court granted thedefendant's motion and imposed a sanction upon the plaintiff. The plaintiff appeals.
Here, the defendant sufficiently alleged that the totality of the circumstances demonstratedthat the plaintiff failed to make a meaningful effort at reaching a resolution (see CitiMortgage, Inc. v Pugliese, 143AD3d 659, 662 [2016]; LaSalleBank, N.A. v Dono, 135 AD3d 827, 829 [2016]; US Bank N.A. v Sarmiento, 121 AD3d 187, 203 [2014]). Thedefendant submitted evidence that demonstrated that the plaintiff, among other things, engagedin dilatory conduct by making piecemeal document requests, providing contradictoryinformation, and repeatedly requesting documents which had already been provided (see Aurora Loan Servs., LLC v Diakite,148 AD3d 662 [2017]; LaSalle Bank, N.A. v Dono, 135 AD3d at 828; Onewest Bank, FSB v Colace, 130AD3d 994, 996 [2015]). In opposition, the plaintiff submitted evidence which controvertedthe defendant's account of [*2]the settlement negotiations.Therefore, the Supreme Court should have held a hearing to determine the issue (see OnewestBank, FSB v Colace, 130 AD3d at 996; cf. LaSalle Bank, N.A. v Dono, 135 AD3d at829). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing and anew determination of the defendant's motion thereafter. Rivera, J.P., Austin, Miller and Barros,JJ., concur.