Citicorp Trust Bank, FSB v. Vidaurre

• Decision Date: 22 November 2017
• Parties: CITICORP TRUST BANK, FSB, etc., respondent, v. Elena C. VIDAURRE, also known as Elena C. Vidaurre–Gilles, et al., defendants, Giftports, Inc., doing business as Jomashop, appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 934

65 N.Y.S.3d 237

CITICORP TRUST BANK, FSB, etc., respondent,

v. Elena C. VIDAURRE, also known as Elena C. Vidaurre–Gilles, et al., defendants,Giftports, Inc., doing business as Jomashop, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 22, 2017.

Ira Daniel Tokayer, New York, NY, for appellant.

Knuckles Komosinksi & Manfro LLP, Elmsford, NY (Christopher R. Mount of counsel), for respondent.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, and FRANCESCA E. CONNOLLY, JJ.

In an action to foreclose a mortgage, the defendant Giftports, Inc., doing business as Jomashop, appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Troia, J.), dated February 22, 2016, as granted those branches of the plaintiff's motion which were for an award of interest on a judgment of foreclosure and sale and for an award of an attorney's fee, and directed an award of an attorney's fee in the sum of $2,500, and denied that branch of its cross motion which was to toll and cancel accrued interest.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the cross motion of the defendant Giftports, Inc., doing business as Jomashop, which was to toll and cancel accrued interest, and substituting therefor a provision granting that branch of the cross motion to the extent of tolling and canceling interest that accrued between March 23, 2010, and November 26, 2014, and otherwise denying that branch of the cross motion, and (2) by deleting the provision thereof awarding the plaintiff an attorney's fee in the sum of $2,500; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Giftports, Inc., doing business as Jomashop, and the matter is remitted to the Supreme Court, Richmond County, for a new determination on the issue of the amount of the attorney's fee to be awarded, following the submission of a more detailed affirmation of services rendered, and, if necessary, for a hearing on that issue.

"In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party" (Prompt Mtge. Providers of N. Am., LLC v. Zarour,

148 A.D.3d 849, 851, 50 N.Y.S.3d 79 [internal quotation marks omitted]; see CPL 5001[a]; Dayan v. York, 51 A.D.3d 964, 965, 859 N.Y.S.2d 673 ). Here, the plaintiff failed to adequately explain its lengthy delay in prosecuting this foreclosure action. Under the circumstances, the Supreme Court should have granted that branch of the cross motion of the defendant Giftports, Inc., doing business as Jomashop, which was to toll and cancel interest that accrued to the extent of tolling and canceling interest that accrued between March 23, 2010, the date of the decision of a prior appeal in this case, in which this Court affirmed the award of summary judgment to the plaintiff (see

Citicorp. Trust Bank, FSB v. Vidaurre, 71 A.D.3d 942, 897 N.Y.S.2d 501 ), and November 26, 2014, the date of the referee's report (see

Dollar Fed. Sav. & Loan Assn. v. Herbert Kallen, Inc., 91 A.D.2d 601, 456 N.Y.S.2d 430 ; South Shore Fed. Sav. & Loan Assn. v. Shore Club Holding Corp., 54 A.D.2d 978, 389 N.Y.S.2d 29 ; see also

Danielowich v. PBL Dev., 292 A.D.2d 414, 415, 739 N.Y.S.2d 408 ).

An award of an attorney's fee pursuant to a contractual provision may only be enforced to the...