| Richlew Real Estate Venture v Grant |
| 2015 NY Slip Op 07018 [131 AD3d 1223] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| Richlew Real Estate Venture,Appellant, v Leonard G. Grant, Respondent, et al.,Defendants. |
Jason Chang, New York, N.Y., for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Queens County (Kerrigan, J.), dated May 6, 2014, which granted themotion of the defendant Leonard G. Grant, inter alia, in effect, to vacate a decision of thesame court dated November 4, 2013, directing that the plaintiff settle an order grantingthe plaintiff's motion, among other things, for summary judgment on the complaint andfor the appointment of a referee, and to transfer the case to the residential foreclosurepart for a mandatory settlement conference pursuant to CPLR 3408.
Ordered that the appeal from so much of the order dated May 6, 2014, as granted thatbranch of the motion of the defendant Leonard G. Grant which was, in effect, to vacatethe decision dated November 4, 2013, is dismissed, as no appeal lies from an ordergranting a motion to vacate a decision (see Delgado v Clark, 307 AD2d 307[2003]; Dorizas v Island Insulation Corp., 254 AD2d 246 [1998]); and it isfurther,
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendant Leonard G. Grant which was totransfer the case to the residential foreclosure part for a mandatory settlement conferencepursuant to CPLR 3408; as so modified, the order is affirmed insofar as reviewed,without costs or disbursements, and the matter is remitted to the Supreme Court, QueensCounty, for a hearing on the issue of whether the defendant Leonard G. Grant is entitledto a mandatory foreclosure settlement conference pursuant to CPLR 3408, and for a newdetermination of that branch of the motion thereafter.
Under the circumstances of this case, the Supreme Court should not have grantedthat branch of the motion of the defendant Leonard G. Grant (hereinafter the defendant)which was to transfer the case to the residential foreclosure part for a mandatorysettlement conference pursuant to CPLR 3408. "CPLR 3408 does not apply to everyresidential foreclosure action" (Independence Bank v Valentine, 113 AD3d 62, 66 [2013]).CPLR 3408 only mandates a settlement conference in a residential foreclosure actioninvolving a "home loan" as that term is defined by RPAPL 1304, and when the"defendant is a resident of the property subject to foreclosure" (see CPLR 3408;US Bank N.A. v Sarmiento,121 AD3d 187, 199-200 [2014]; HSBC Bank USA v McKenna, 37 Misc 3d 885, 895-896[2012]).
RPAPL 1304 (5) (b) (i)-(iv) defines a qualifying home loan as one in which, interalia, the borrower is a natural person; the borrower incurs the debt primarily for personal,family, or household purposes; and the loan is secured by a mortgage on real property inthis state "used or occupied, or intended to be used or occupied wholly or partly, as thehome or [the] residence of one [*2]or more persons andwhich is or will be occupied by the borrower as the borrower's principal dwelling"(Independence Bank v Valentine, 113 AD3d at 65 [internal quotation marksomitted]).
Here, the conflicting affidavits submitted by the parties reveal a sharp factual dispute,inter alia, as to whether the subject loan was made for the defendant's personal, family, orhousehold use, and whether the mortgaged premises was to be occupied as thedefendant's principal dwelling. In light of this factual dispute, a hearing is necessary todetermine whether the subject loan constitutes a "home loan" as that term is defined byRPAPL 1304, and thus whether the defendant is entitled to a mandatory settlementconference pursuant to CPLR 3408.
The plaintiff's remaining contentions are without merit.
Accordingly, we remit the matter to the Supreme Court, Queens County, for ahearing to determine whether the defendant is entitled to a mandatory foreclosuresettlement conference pursuant to CPLR 3408, which requires, among other things, adetermination as to whether the subject loan constitutes a "home loan" as that term isdefined by RPAPL 1304, and thereafter, a new determination of that branch of thedefendant's motion which was to transfer the case to the residential foreclosure part for amandatory settlement conference pursuant to CPLR 3408. Eng, P.J., Hall, Cohen andBarros, JJ., concur.