Reis v. Decker

135 Misc. 2d 741, 516 N.Y.S.2d 851, 1987 N.Y. Misc. LEXIS 2297

Opinion

OPINION OF THE COURT

Robert L. Estes, J.

In her testimony before the Referee appointed to compute and report in this mortgage foreclosure proceeding, the plaintiff has testified that in addition to the principal balance and accrued interest, the defendants owe 17 installments of late charges authorized by section 254-b of the Real Property Law, in the amount of $5.28 each, aggregating $89.76. The Referee has reported that such amounts are due and owing to the plaintiff.

The plaintiff may not properly claim late charges in this proceeding. To the extent that she has, her testimony was inaccurate and the Referee’s reliance thereon was misplaced.

It is evident from the terms of the mortgage and from the pleadings of the plaintiff that the plaintiff has elected to accelerate the debt pursuant to paragraph "17” of the mortgage, and to proceed by foreclosure. By so doing, she has elected to seek recovery of the full amount due, rather than to sue only for those installments which are currently due. The purpose of late charges is to compensate a creditor for the expense and inconvenience of collecting installments. Such charges are proper and recoverable in actions to recover installments which are due and unpaid, but are not recoverable in a foreclosure proceeding whereat one seeks to recover a full accelerated principal debt.

Except for the finding indicating that late charges are due, the Referee’s report will be approved, and judgment for the plaintiff will be entered.