M&T Real Estate, Inc. v. JJF Associates, LLC

308 A.D.2d 362, 764 N.Y.S.2d 349, 2003 N.Y. App. Div. LEXIS 9394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 2003
• Status: Published

Opinion

—Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about January 17, 2003, which, inter alia, granted defendants’ motion to redeem the subject mortgage to the extent of directing plaintiff to issue a satisfaction of mortgage and judgment upon defendants’ payment of $1,203,849.94, with interest thereon at the rate of 9% per year from November 9, 1999, the date that the judgment of foreclosure was entered, to July 30, 2001, the date that defendants moved to redeem the mortgage, and order, same court and Justice, entered January 17, 2003, which denied plaintiff’s motion to vacate the decision dated November 8, 2001, underlying the above order, unanimously affirmed, with one bill of costs. Appeal from decision dated November 8, 2001 unanimously dismissed, without costs, as taken from a nonappealable paper.

The order permitting defendants to redeem the mortgage conforms to the provision in the foreclosure judgment awarding interest at a specified daily rate “until the date of judgment and thereafter at the legal rate.” Plaintiffs claim that the mortgage entitles it to greater interest upon redemption constitutes a collateral attack on the judgment that the motion court properly refused to entertain absent a showing of fraud or other misconduct by defendants warranting relief pursuant to CPLR 5015. The delay that occurred after defendants made their motion to redeem was due to plaintiffs opposition to that motion and its settlement, and, accordingly, the motion court properly refused to award any interest for that period of time (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]). We have considered plaintiffs other arguments and find them unavailing. Concur — Ellerin, J.P., Williams, Lerner, Friedman and Gonzalez, JJ.