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PLAINTIFF LOAN SERVICING COMPANY WAIVED THE TIME OF THE ESSENCE PROVISION BY ITS RELENTLESS EFFORTS TO PREVENT THE FORECLOSURE SALE TO THE HIGHEST BIDDER (TO EXACT A HIGHER PRICE); THE SANCTIONS IMPOSED ON PLAINTIFF WERE NOT SUPPORTED BY A WRITTEN DECISION AS REQUIRED BY THE CONTROLLING REGULATION; SANCTIONS ASPECT REMITTED (FOURTH DEPT).

The Fourth Department determined plaintiff loan company waived the time of the essence provision in this foreclosure sale to the highest bidder, Fox, by its relentless attempts to prevent the sale from going forward (to exact a higher purchase price). The Fourth Department noted that the sanctions imposed upon plaintiff were not supported by a written decision as required by 22 NYCRR 130-1.1 and remanded for compliance with the regulation:

We reject plaintiff’s contention that the court erred in determining that Fox did not breach the time is of the essence clause. It is well settled that “[a] party may waive timely performance even where the parties have agreed that time is of the essence” … , and that such a waiver may be accomplished by the conduct of a party … . Here, we agree with the court that plaintiff’s relentless attempts to prevent the sale from going forward constituted a waiver of the time is of the essence clause.

We also reject plaintiff’s further contention that the court erred in determining that plaintiff engaged in frivolous conduct and in imposing sanctions for such conduct. We conclude that plaintiff’s conduct was “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law[, and was] undertaken primarily to delay or prolong the resolution of the litigation” (22 NYCRR 130-1.1 [c] [1], [2] …). Nevertheless, we conclude that the court erred in failing to comply with 22 NYCRR 130-1.2 because “it failed to set forth in a written decision the conduct on which . . . the imposition [of sanctions] is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount . . . imposed to be appropriate’ ” … . We therefore modify the order by vacating the fourth ordering paragraph and we remit the matter to Supreme Court for compliance with 22 NYCRR 130-1.2 … . Bayview Loan Servicing, LLC v Strauss, 2019 NY Slip Op 05866, Fourth Dept 7-31-1

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION SHOULD HAVE BEEN SUPPRESSED; GUILTY PLEA VACATED (FOURTH DEPT).
FAILURE TO TIMELY FILE THE OBJECTIONS TO THE SUPPORT MAGISTRATE’S DETERMINATION DID NOT WARRANT DISMISSAL OF THE OBJECTIONS (FOURTH DEPT).
PLAINTIFF SOUGHT ARREARAGES FOR A PORTION OF DEFENDANT’S PENSION UNDER THE TERMS OF THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; THE ACTION WAS THEREFORE IN THE NATURE OF A BREACH OF CONTRACT AND WAS LIMITED BY THE SIX-YEAR STATUTE OF LIMITATIONS (FOURTH DEPT).
HERE THE WRITTEN LOGGING CONTRACT WAS COMPLETE AND UNAMBIGUOUS; EVIDENCE OF AN ALLEGED ADDITIONAL ORAL AGREEMENT WAS PRECLUDED BY THE PAROL EVIDENCE RULE (FOURTH DEPT).
PORTIONS OF THE RESPONDENTS’ APPRAISAL REPORT IN THIS CONDEMNATION PROCEEDING SHOULD NOT HAVE BEEN STRUCK BECAUSE THE PROPER VALUATION METHOD WAS USED; THE EVIDENTIARY RULING ON THE MOTION IN LIMINE IS APPEALABLE BECAUSE THE RULING AFFECTS THE SCOPE OF THE TRIAL ISSUES (FOURTH DEPT).
DEFENDANT PROPERTY OWNER WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, PLAINTIFF’S ONLY REMEDY FOR INJURY FROM A FALL WAS UNDER THE WORKERS’ COMPENSATION LAW (FOURTH DEPT).
ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT).

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