Practice point: Although the Supreme Court had authority to impose sanctions if it determines, after a hearing, that the plaintiff failed to negotiate in good faith in a mandatory foreclosure
settlement conference, it did not have authority to include such a provision in the judgment in the absence of any application for that relief. In addition, the court's imposition of exemplary damages, and the effective use of those exemplary damages to award a reduction of the principal balance of the subject
mortgage, was done without notice to the plaintiff that the court was
contemplating such a sanction, and deprived the plaintiff of its
right to due process.
Student note: CPLR 3408 does not require the plaintiff to make
the exact offer desired by the defendant, and the plaintiff's
failure to make that offer cannot be construed as a lack of good
faith.
Case: Bank of Am. v. Lucido, NY Slip Op 00956 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: The effect of affidavits of service.
