| Federal Natl. Mtge. Assn. v Anderson |
| 2014 NY Slip Op 05508 [119 AD3d 892] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Federal National Mortgage Association,Appellant, v Edward Anderson, Also Known as Edward A. Anderson,Respondent, et al., Defendants. |
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino ofcounsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Graham, J.), dated October 1,2012, as denied those branches of its motion which were for summary judgment on thecomplaint and dismissing the affirmative defenses of the defendant Edward Anderson,also known as Edward A. Anderson, and for the appointment of a referee to compute theamount due to it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the plaintiff's motion which were for summary judgment on thecomplaint and dismissing the affirmative defenses of the defendant Edward Anderson,also known as Edward A. Anderson, and for the appointment of a referee to compute theamount due to it, are granted.
The plaintiff commenced this action on August 19, 2009, to foreclose a mortgagesecuring a loan that was made on September 17, 2008. The plaintiff thereafter moved for,among other things, summary judgment on the complaint and dismissing the affirmativedefenses of the defendant Edward Anderson, also known as Edward A. Anderson, andfor the appointment of a referee to compute the amount due to it. In support of itsmotion, the plaintiff submitted, inter alia, the subject mortgage, the unpaid note, and anaffidavit of its vice-president, evidencing Anderson's default in his paymentobligations.
Anderson, who conceded that he took out the subject loan and that he had defaulted,cross-moved, inter alia, to schedule a settlement conference pursuant to CPLR 3408,which provides that the Supreme Court shall conduct a mandatory settlement conferencein connection with certain residential foreclosure actions. In an order dated September24, 2010, the Supreme Court held the plaintiff's motion in abeyance, and granted thecross motion to the extent of directing a conference. A subsequent order indicated thatthe parties had appeared for a settlement conference, but were unable to reach anagreement, and that the matter would "proceed."
Prior to the Supreme Court's consideration of the merits of the plaintiff's motion,Anderson served an amended notice of cross motion, in effect, opposing the summaryjudgment motion on various grounds. The Supreme Court concluded that the plaintiffhad demonstrated, prima facie, its entitlement to judgment as a matter of law on thecomplaint and dismissing Anderson's affirmative defenses. The court further determinedthat Anderson failed to raise a triable [*2]issue of fact inopposition to the plaintiff's prima facie showing. However, the court neverthelessdetermined that there was no indication in the record as to whether the plaintiff hadnegotiated in good faith at the settlement conference. Accordingly, the Supreme Courtdenied those branches of the plaintiff's motion which were for summary judgment on thecomplaint and dismissing Anderson's affirmative defenses, and for the appointment of areferee to compute the amount due to it.
The Supreme Court erred in denying those branches of the plaintiff's motion whichwere for summary judgment on the complaint and dismissing Anderson's affirmativedefenses, and for the appointment of a referee to compute the amount due to it. AlthoughAnderson first opposed the plaintiff's motion by cross-moving to schedule a settlementconference, once the matter was returned from the settlement conference part, Andersondid not oppose the plaintiff's motion on the ground that the plaintiff had not negotiated ingood faith or otherwise contend that the matter should have been sent back to thesettlement conference part. The Supreme Court should not have raised the issue of itsown accord, and based its determination of the motion on a ground that was neitherraised nor briefed by the parties (see Rosenblatt v St. George Health &Racquetball Assoc., LLC, 119 AD3d 45, 53 [2d Dept 2014]; Neville v 187 E. Main St., LLC, 33 AD3d 682, 682-683[2006]).
In addition, although the current version of CPLR 3408 applies the settlementconference requirement to "any residential foreclosure action involving a home loan. . . in which the defendant is a resident of the property" (CPLR 3408 [a]),that version did not become effective until after this action was commenced (seeL 2013, ch 306, § 2 [eff Aug. 30, 2013]; see also L 2009, ch 507,§ 9 [eff Feb. 13, 2010]). As the plaintiff correctly contends, the originalversion of CPLR 3408, enacted in 2008, was in effect at the time this action wascommenced (see CPLR former 3408, as added by L 2008, ch 472,§ 3). Accordingly, the original version of the statute is applicable to thiscase (cf. Deutsche Bank Natl.Trust Co. v Spanos, 102 AD3d 909, 911 [2013]).
The original version of the statute "applied only to foreclosure actions involvinghigh-cost home loans or subprime or nontraditional home loans" (Independence Bank vValentine, 113 AD3d 62, 65 [2013]; see CPLR former 3408, as addedby L 2008, ch 472, § 3). Since the loan at issue in this case did notconstitute a high-cost home loan, a subprime home loan, or a nontraditional home loan,as those terms were defined in the original version of the statute, the plaintiff was notrequired to participate in a settlement conference at all (see CPLR former 3408,as added by L 2008, ch 472, § 3; RPAPL former 1304 [5] [c], as added byL 2008, ch 472, § 2). Accordingly, the Supreme Court erred in denyingthose branches of the plaintiff's motion which were for summary judgment on thecomplaint and dismissing Anderson's affirmative defenses, and for the appointment of areferee to compute the amount due to it.
To the extent that the plaintiff raises an argument on appeal regarding that branch ofits motion which was to amend the caption of this action, or that branch of its motionwhich was for leave to enter a default judgment against the remaining defendants, thosebranches of its motion were not addressed by the Supreme Court and, thus, remainpending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]).Mastro, J.P., Leventhal, Lott and Miller, JJ., concur.