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IT WAS A PROPER EXERCISE OF DISCRETION TO EXTEND THE DEADLINE FOR THE FORECLOSURE SALE DUE TO THE COVID PANDEMIC; HOWEVER IT WAS AN ABUSE OF DISCRETION TO DENY THE MOTION TO TOLL THE ACCRUAL OF INTEREST DURING THE DELAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the deadline for the foreclosure sale mandated by RPAPL 1351 was properly extended due to the COVID pandemic, but the accumulation of interest during the delay should have been tolled:

… Supreme Court providently exercised its discretion in granting the plaintiff’s motion pursuant to CPLR 2004 to extend the time to conduct the foreclosure sale to the extent of extending the time to conduct the sale to 90 days from the date of the order … . The plaintiff demonstrated that “the delay [wa]s largely attributable to, among other things, . . . the COVID-19 pandemic” … . Further, the defendant failed to establish that the delay caused him any prejudice … .

“A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . Thus, “[i]n 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” … . “Further, a tolling and cancellation of interest may also be warranted where there is an unexplained delay in prosecution of a mortgage foreclosure action” … . “[A] plaintiff should not benefit financially, in the form of accrued interest, from an unexplained delay in the prosecution of a mortgage foreclosure action” … .

… Supreme Court improvidently exercised its discretion in denying the defendant’s cross-motion to toll the accrual of interest on the subject mortgage loan … . The plaintiff asserted that the COVID-19 pandemic impacted its ability to proceed with the sale of the property … . However, the pandemic-related stays on foreclosure sales did not go into effect until after the expiration of the 90-day deadline to conduct the sale of the property … , and the plaintiff failed to adequately explain its failure to conduct the sale within that 90-day period … . Under the circumstances presented, the court should have granted the defendant’s cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020 … . M&T Bank v Givens, 2025 NY Slip Op 05677, Second Dept 10-15-25

Practice Point: A foreclosure is an equitable proceeding triggering the exercise of discretion by the the judge. Here the extension of the deadline for the foreclosure sale due to the COVID pandemic was a proper exercise of discretion, but the denial of the motion to toll the accrual of interest during the delay was an abuse of discretion.

 

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