| Flushing Sav. Bank v Chester Latham |
| 2016 NY Slip Op 03468 [139 AD3d 663] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Flushing Savings Bank, Plaintiff, v ChesterLatham, Respondent. BNH XV, LLC, et al., NonpartyAppellants. |
Claude Castro & Associates PLLC, New York, NY (D. Paul Martin of counsel),for nonparty appellants.
In an action to foreclose a mortgage, nonparty appellants BNH XV, LLC, andMaxim Credit Corp. appeal from an order of the Supreme Court, Kings County(Solomon, J.), dated October 17, 2013, which, in effect, denied their motion for leave tobe substituted as the plaintiffs in the action and to amend the caption accordingly, forsummary judgment on the complaint, to strike the defendant's amended answer, and toconfirm a referee's report dated September 17, 2010.
Ordered that the order is modified, on the law, by deleting the provision thereof, ineffect, denying that branch of the motion of the nonparty appellants BNH XV, LLC, andMaxim Credit Corp. for leave to be substituted as the plaintiffs in the action and toamend the caption accordingly, and substituting therefor a provision granting that branchof the motion; as so modified, the order is affirmed, without costs or disbursements, andthe matter is remitted to the Supreme Court, Kings County, for further proceedings,including the amendment of the caption in accordance herewith.
In 2007, the defendant executed an adjustable rate note to borrow the sum of$372,000 from Flushing Savings Bank (hereinafter Flushing). The note was secured by amortgage on the property located at 116 Hopkinson Avenue, Brooklyn (hereinafter thesubject premises). The mortgage documents described the subject premises as a "1-3family with store/office." The loan and mortgage documents also indicated that thedefendant did not reside at the subject premises, but instead resided at another address inBrooklyn.
In August 2009, Flushing commenced this action against the defendant to foreclosethe mortgage, alleging that the defendant had defaulted on his payment obligation as ofApril 1, 2009. An affidavit of service indicated that the process server served thedefendant at the subject premises with the summons and complaint, along with therequired notice pursuant to RPAPL 1303. The defendant filed a pro se answer, whichwas rejected by Flushing. Subsequently, the Supreme Court granted Flushing's motionfor an order of reference, and the referee issued a report dated September 17, 2010,computing the amount due. Thereafter, on September 27, 2012, Flushing assigned itsinterest in the note, mortgage, and this foreclosure action to nonparty BNH XV, LLC(hereinafter BNH). In turn, BNH assigned a security interest in the note and mortgage tononparty Maxim Credit Corp. (hereinafter Maxim). In March 2013, the Supreme Courtgranted the [*2]defendant's motion for leave to file anamended answer, and the defendant subsequently filed an amended answer assertingcertain affirmative defenses, including noncompliance with the notice provisions ofRPAPL 1304. In the amended answer, the defendant admitted that the subject premiseswere his residence.
BNH and Maxim (hereinafter together the nonparty appellants), as the plaintiffs byassignment, moved for leave to be substituted as the plaintiffs in the action and to amendthe caption accordingly, for summary judgment on the complaint, to strike thedefendant's amended answer, and to confirm the referee's report dated September 17,2010. No opposition to the motion was filed. The Supreme Court, in effect, denied themotion.
The Supreme Court improvidently exercised its discretion by, in effect, denying thatbranch of the nonparty appellants' motion which was for leave to be substituted as theplaintiffs in the action and to amend the caption accordingly. Flushing assigned itsinterest in the note, mortgage, and this action to BNH after this action had beencommenced, and BNH, in turn, assigned a security interest in the note and mortgage toMaxim (see CPLR 1018). The defendant filed no opposition to the motion and,thus, did not oppose the nonparty appellants' substitution request (see CPLR 3025[b]; Maspeth Fed. Sav. &Loan Assn. v Simon-Erdan, 67 AD3d 750, 751 [2009]; East Coast Props. vGalang, 308 AD2d 431 [2003]).
However, the Supreme Court properly, in effect, denied those branches of thenonparty appellants' motion which were for summary judgment on the complaint, tostrike the defendant's amended answer, and to confirm the referee's report datedSeptember 17, 2010. A plaintiff in a residential foreclosure action has the burden ofdemonstrating compliance with the notice requirements of RPAPL 1304 (see Hudson City Sav. Bank vDePasquale, 113 AD3d 595, 596 [2014]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 98[2011]). Here, contrary to the nonparty appellants' contention, they failed to establish, asa matter of law, that the subject loan did not qualify as a "home loan" as defined inRPAPL 1304 (5) (a). The nonparty appellants' submissions revealed triable issues of factas to whether the debt was incurred by the defendant "primarily for personal, family, orhousehold purposes," and whether the subject premises is a "one to four family dwelling. . . used or occupied, or intended to be used or occupied wholly or partly"by the defendant as his principal dwelling (RPAPL 1304 [5] [a] [ii], [iii]). Since thenonparty appellants failed to meet their prima facie burden, those branches of theirmotion which were for summary judgment on the complaint, to strike the defendant'samended answer, and to confirm the referee's report dated September 17, 2010, were, ineffect, properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Hudson City Sav. Bank v DePasquale, 113 AD3d at 596; Aurora Loan Servs.,LLC v Weisblum, 85 AD3d at 106). Rivera, J.P., Hall, Roman and Sgroi, JJ.,concur.