You are here: / / INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO...
,

INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined the amount of interest and attorney’s fees in this foreclosure proceeding must be recalculated. There was a three-year delay (which was not plaintiff’s fault) for which interest should not have accrued. In addition there must be some showing the attorney’s fees reflect the work actually done:

​

“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” … . Here, in view of the lengthy delay by PE-NC’s [plaintiff’s] predecessors in interest in prosecuting this action, PE-NC should recover no interest for the roughly three-year period of time from when the action was commenced in 2005 to when the defendant filed a request for judicial intervention in 2008. While PE-NC did not cause this delay, it should not benefit financially, in the form of accrued interest, from this delay caused by its predecessors in interest. Furthermore, PE-NC should not recover interest on the counsel fees awarded to it. Paragraphs 7 and 21 of the mortgage are inconsistent regarding whether interest could be recovered on counsel fees. Since “ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it” … , this ambiguity must be resolved against PE-NC, whose predecessors in interest presented the mortgage. Moreover, interest awarded under paragraph 7 of the mortgage, on money advanced to protect the lender’s rights in the property, should not have been awarded at the rate of 17%, but at the “Note rate,” which, in this case, was 7.25%.

“An award of an attorney’s fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered. In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation” … . In this case, a determination must be made on the reasonableness of the counsel fees, following a hearing on that issue, if necessary. Greenpoint Mtge. Corp. v Lamberti, 2017 NY Slip Op 08353, Second Dept 11-29-17

 

FORECLOSURE (INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS (FORECLOSURE, INTEREST, FEES, INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))/INTEREST (FORECLOSURE, ATTORNEY’S FEES, INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))

You might also like
Bank’s Duty With Respect to Negligent Dishonoring of a Cashier’s Check 
SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.
PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT).
​ DEFENDANT DEMONSTRATED PLAINTIFF CAUSED THE TRAFFIC ACCIDENT BY MAKING AN UNREASONABLE LEFT TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (NEGLIGENCE PER SE); THE COURT MAY DETERMINE THE PROXIMATE CAUSE OF A TRAFFIC ACCIDENT AT THE SUMMARY JUDGMENT STAGE AS A MATTER OF LAW IF ONLY ONE CONCLUSION CAN BE DRAWN FROM THE FACTS (SECOND DEPT).
Where There Is a Surviving Partner and No Agreement to the Contrary, the Representative of a Deceased Partner Cannot Participate in the Winding Up of the Partnership and Has No Legal Right to the Partnership’s Assets, Books, Records or Business
THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).
PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY AN EMPLOYEE OF THE COUNTY SHERIFF’S DEPARTMENT IN A GUARDED DEPARTMENT PARKING LOT AND IN A LOCKED BATHROOM IN THE JAIL; BECAUSE THE COUNTY WAS ENGAGED IN A GOVERNMENTAL, NOT A PROPRIETARY, FUNCTION (PROVIDING SECURITY FOR THE PARKING LOT AND JAIL), PLAINTIFF MUST DEMONSTRATE THE COUNTY OWED HIM A SPECIAL DUTY, WHICH HE WAS UNABLE TO DO (SECOND DEPT). ​
ALTHOUGH TRADER JOE’S APPARENTLY DID NOT OWN THE PARKING LOT WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT OCCUPY, CONTROL OR MAKE SPECIAL USE OF THE PARKING LOT; TRADER JOE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT... DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW...