In BNH Caleb 14 LLC v. Mabry (11 N.Y.S.3d 844, 2015 NY Slip Op 25212 [Sup Ct, Queens County Jun 25, 2015]) the mortgage payments were due on the first day of the month and the defendant-mortgagor's check, which was dated April 8, 2014 for the April 1, 2014 payment and made to the order of BNH's counsel, was not allegedly received until April 14, 2014. Although the mortgage note only permitted a 10-day grace period, it was nevertheless accepted and endorsed by BNH's counsel, deposited and cashed. The defendant-mortgagor's payment did not include a monthly late fee of 5% of $2,363.42 or approximately $118.15. The defendant-mortgagor's May 2014 payment was also late, and BNH, by its counsel, sent a letter to the defendant-mortgagor, deeming her in default under the mortgage note and accelerating all other payments for her alleged lateness coupled with her failure to include the $118.15 late fee in the prior month's payment. The Supreme Court, Queens County, found that the mortgagor had set forth a meritorious defense based upon the unconscionability of BNH because its attorney had accepted the defendant-mortgagor's first late check, which did not include the required late fee, and caused it to be deposited, instead of declaring a default, thereby lulling her "into a sense of belief that her tardy payment would be accepted, albeit with the imposition of additional late fees." The Supreme Court, Queens County, therefore, held that genuine issues of material fact existed as to whether it was unconscionable for BNH to foreclose the mortgage on the defendant-mortgagor's real property following the second late monthly mortgage payment after her first late check had been accepted and cashed by BNH's attorney, precluding summary judgment in favor of BNH.