| Bank of Am. v Forrest |
| 2014 NY Slip Op 51371(U) [44 Misc 3d 1228(A)] |
| Decided on June 10, 2014 |
| Supreme Court, Putnam County |
| Grossman, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Bank of
America, NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR FIRST
FRANKLIN MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2007-FF1, Plaintiff,
against Laurence Forrest; DESIREE FORREST, Defendants. |
The following papers, numbered 1 to 6, were considered in connection with Plaintiff's Motion for an Order canceling the lis pendens, discharging the referee and discontinuing the action. Defendants oppose this motion in part.PAPERSNUMBERED
Affirmation/Stipulation1-4
In support of its motion for an Order canceling the lis pendens, discharging the referee and discontinuing the action, Plaintiff submits a stipulation signed by Plaintiff's counsel, Defendants' counsel and the Referee.
Defendants oppose the motion only to the extent that they should not be penalized for Plaintiff's extensive delay in moving this Court to discontinue the action. Specifically, Defendants' counsel signed the stipulation on September 4, 2012, and therefore, according to Defendants, the accruing interest should be tolled since Plaintiff inexplicably waited approximately 1.5 years before filing the instant motion. Defendants also note that a prior stipulation of discontinuance had been signed on October 22, 2009, but it, too, was never submitted to the Court. Plaintiff did not respond to this claim.
With respect to Plaintiff's motion, this Court grants the discontinuance. However, this Court agrees that Plaintiff's delay in moving to discontinue this action was unreasonable and unexcused. Therefore, this Court grants nunc pro tunc Defendants' motion for an order tolling the accrual of the interest commencing from September 4, 2012 — the last date signed on the second stipulation. See U.S. Bank National Association v. Gioia, 43 Misc 3d 947 (Sup.Ct. 2013)(tolling accrual of interest warranted nunc pro tunc, commencing from time mortgagee commenced foreclosure action until either settlement or release of mortgagee from foreclosure settlement part, in light of mortgagee's unreasonable and unexcusable delay in filing RJI and entering in settlement negotiations).As such, it is hereby
ORDERED that Plaintiff's motion is granted; and it is further
ORDERED that the above-entitled action be and the same is [*2]hereby discontinued with prejudice; and it is further
ORDERED that this discontinuance with prejudice is with respect to all interest, costs, disbursements and counsel fees incurred from September 4, 2012; and it is further
ORDERED that the County Clerk of Putnam is directed, upon payment of the proper fees, if any, to cancel and discharge a certain Lis Pendens filed in this action on May 8, 2008, and a second Lis Pendens filed in this action on June 22, 2012, against property known as 65 Scout Hill Road, Mahopac, New York 10541, also known as Section: 52.20, Block: 1, Lot: 10, and said Clerk is hereby directed to enter upon the margin of the record of same Notice of Cancellation referring to this Order; and it is further
ORDERED that the Referee appointed herein, Jay B. Hashmall, Esq., to ascertain and compute the amount due on the bond/note, be and is hereby relieved and discharged of any and all obligations and requirements thereunder.
The foregoing constitutes the Decision and Order of the Court.
HON. VICTOR G. GROSSMAN, J.S.C.