| Wells Fargo Bank, NA v Ostiguy |
| 2014 NY Slip Op 05485 [119 AD3d 1266] |
| July 24, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Wells Fargo Bank, NA, Respondent, v Pierre N.Ostiguy, Also Known as Pierre Ostiguy, et al., Appellants, et al.,Defendants. |
Kim D'Souza, LaGrangeville, for appellants.
Hogan Lovells US, LLP, New York City (Robin L. Muir of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Zwack, J.), entered April 2,2013 in Columbia County, which, among other things, granted plaintiff's motion to bereleased from a mandatory settlement conference.
Defendants Pierre N. Ostiguy and Elaine R. Thomas (hereinafter collectively referredto as defendants) are the owners of a rental property located in Columbia County. In2009, defendants executed a mortgage on the property, but they defaulted on themortgage in 2011 and plaintiff commenced this foreclosure action in 2012. Althoughplaintiff mistakenly requested a mandatory settlement conference and one was scheduled(see CPLR 3408 [a]; 22 NYCRR 202.12-a [b] [1]), plaintiff later moved to bereleased from the conference requirement because defendants were not residents of theproperty. Defendants opposed the motion and, relying on CPLR 3408 (e), theycross-moved for disclosure of certain information concerning the ownership of theirmortgage. Supreme Court, among other things, granted plaintiff's motion and denieddefendants' cross motion. Defendants now appeal.
Inasmuch as there is no dispute that defendants did not reside at the mortgagedpremises, Supreme Court correctly concluded that CPLR 3408 was inapplicable andgranted plaintiff's motion to be released from the mandatory settlement conference. Sincedefendants were not "resident[s] of the property subject to foreclosure" (CPLR 3408 [a]),they "[were] not [*2]entitled to a settlement conference orthe other protections accorded to homeowners in residential foreclosures" (Marcon Affiliates, Inc. vVentra, 112 AD3d 1095, 1096 [2013]; see Brandywine Pavers, LLC v Bombard, 108 AD3d 1209,1210 [2013]).
Defendants' contention concerning Supreme Court's cautionary footnote directed atdefendants' counsel is not properly before us as neither defendants nor counsel wereaggrieved thereby (seeVanderlyn v Daly, 97 AD3d 1053, 1055 n 3 [2012], lv denied 20 NY3d853 [2012]; Matter of Valensonv Kenyon, 80 AD3d 799, 799 [2011]; Matter of Grace R., 12 AD3d 764, 765 [2004]).Defendants' remaining contentions have been rendered academic by this decision.
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed,with costs.