Reis v. Decker

New York County Courts

Reis v. Decker

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

CourtNew York County Courts

DecidedApril 13, 1987

StatusPublished

Cited by5 cases

This text of 135 Misc. 2d 741 (Reis v. Decker) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reis v. Decker, 135 Misc. 2d 741, 516 N.Y.S.2d 851, 1987 N.Y. Misc. LEXIS 2297 (N.Y. Super. Ct. 1987).

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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.

[742]*742The 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.

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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.

[742]*742The 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.

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Bluebook (online)

135 Misc. 2d 741, 516 N.Y.S.2d 851, 1987 N.Y. Misc. LEXIS 2297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reis-v-decker-nycountyct-1987.

Opinion

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