CPLR 2004 Extensions, the 90-Day Foreclosure Sale Rule and the Tolling of Interest Accruals
Print Article- Posted on: Oct 17 2025
Today’s article addresses M & T Bank v. Givens, a case decided on October 15, 2025, by the Appellate Division, Second Department. Givens addresses three issues encountered in mortgage foreclosure actions:[1] motions for extensions of time pursuant to CPLR 2004, the 90-day requirement to conduct foreclosure sales pursuant to RPAPL 1351(1) and the tolling of interest due to a lender’s delays in prosecuting its foreclosure action.
CPLR 2004
CPLR 2004 provides that “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” “CPLR 2004 vests the trial court with discretion to extend the time to perform any act” and, when considering a motion made pursuant to that provision, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit.” Tewari v. Tsoutsouras, 75 N.Y.2d 1, 11-12 (1989) (citations omitted); see also Nationstar Mortgage, LLC v. Dunn, 230 A.D.3d 1327, 1330 (2nd Dep’t 2024).
RPAPL 1351(1)[2]
In this BLOG’s article “RPAPL 1351(1) Requires a Foreclosure Sale to Occur Within Ninety Days of the Date of the Judgment of Foreclosure and Sale,” we, for the first time, discussed RPAPL 1351(1)’s requirement that judgments of foreclosure and sale direct that foreclosure sales occur within ninety days of the judgment. As discussed in the article, in order to vacate a judgment of foreclosure and sale and/or set aside a sale because a sale did not occur within 90 days pursuant to RPAPL 1351(1), a borrower would have to show that “the delay of the foreclosure sale prejudiced a substantial right.” Wells Fargo Bank, N.A. v. Singh, 204 A.D.3d 732, 734 (2nd Dep’t 2022); see also Bank of New York Mellon v. Adam P10tch, LLC, 226 A.D.3d 497, 498 (1st Dep’t 2024). The same is true if the statutorily required “ninety day” language is omitted from a judgment of foreclosure and sale. Wells Fargo Bank, N.A. v. Malik, 203 A.D.3d 1110, 1112 (2nd Dep’t 2022) (“since the defendant does not allege that any substantial right of his was prejudiced by the omission of the statutory language from the judgment of foreclosure and sale, the Supreme Court properly declined to vacate the notice of sale on that ground”).
Tolling of Interest
In prior BLOG articles, we discussed the court’s power to toll the accrual of interest in mortgage foreclosure actions.[3] We noted that the calculation of interest is an important component of the of the sums due to the lender. CPLR 5001(a) provides, in relevant part, that “in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.” See also U.S. Bank, N.A. v. Peralta, 191 A.D.3d 924, 925-26 (2nd Dep’t 2021);.Wells Fargo Bank, N.A. v. Daniel, 231 A.D.3d 899, 901 (2nd Dep’t 2024) (citations omitted). In that regard, a “foreclosure action is equitable in nature and triggers the equitable powers of the court.” U.S. Bank Nat. Ass’n v. Williams, 121 A.D.3d 1098, 1101-02 (2nd Dep’t 2014) (numerous citations and internal quotation marks omitted); see also Wells Fargo, 231 A.D.3d at 901. Once invoked, the Court’s equity powers are “as broad as equity and justice require.” Deutsche Bank National Trust Co. v. Armstrong, 218 A.D.3d 738, 739 (2nd Dep’t 2023) (citations and internal quotation marks omitted). The court, in exercising its discretion, “is governed by the particular facts in each case.” U.S. Bank, 191 A.D.3d at 926 (citations omitted).
A court’s authority can be used to toll interest in, inter alia, foreclosure actions, where the lender’s conduct “is deemed wrongful” or where there has been “unexplained delay” in the prosecution of the action. Wells Fargo, 231 A.D.3d at 901 (citations and internal quotation marks omitted); see also Deutsche Bank Trust Company Americas v. Knights, 231 A.D.3d 1016, 1018 (2nd Dep’t 2024).
M & T Bank v. Givens
In 2016, lender commenced a foreclosure action against borrower. A judgment of foreclosure and sale was issued in November of 2019, directing, inter alia, the sale of the subject property within 90 days. While the sale was scheduled to occur within the requisite timeframe, it was postponed at the lender’s request. In June of 2022, the lender moved pursuant to CPLR 2004 to extend the time to conduct the sale. The borrower opposed the motion and cross-moved to toll the accrual of interest from the end of the 90-day period to the sale date. The motion court extended lender’s time to conduct a foreclosure sale and denied the borrower’s cross-motion. The borrower appealed.
The Second Department modified the motion court’s order by tolling the accrual of interest. The Court let stand that portion of the motion court’s order extending the lender’s time to conduct a foreclosure sale. As to the latter, the Court found that that the motion court “providently exercised its discretion” in granting the lender’s motion pursuant to CPLR 2004 as the lender “demonstrated that the delay was largely attributable to, among other things, the COVID-19 pandemic.” (Citations, internal quotation marks, brackets and ellipses omitted.) the Court also found that the borrower failed to demonstrate and prejudice from the delay. (Citations omitted).
As to the tolling of the accrual of interest, after discussing authorities like those cited supra, the Court stated:
Here, contrary to the [lender]’s contention, the Supreme Court improvidently exercised its discretion in denying the [borrower]’s cross-motion to toll the accrual of interest on the subject mortgage loan. The [lender] 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 [lender] 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 [borrower]’s cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020 [the expiration of the ninety-day period following the issuance of the judgment of foreclosure and sale]. [Citations omitted.]
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
[2] This BLOG has previously addressed RPAPL 1351(1). See, e.g., [here] and [here].
[3] This BLOG has previously addressed the issue of the Court’s discretion to toll the accrual of interest due to a lender in foreclosure actions. See, e.g., [here] and [here].
Tagged with: Commercial Litigation, Mortgage Foreclosure, Real Estate Litigation
