Opinion
2014-07-24
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), for respondent.
Kim D'Souza, LaGrangeville, for appellants. Hogan Lovells US, LLP, New York City (Robin L. Muir of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, EGAN JR. and CLARK, JJ.
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 be released from a mandatory settlement conference.
Defendants Pierre N. Ostiguy and Elaine R. Thomas (hereinafter collectively referred to as defendants) are the owners of a rental property located in Columbia County. In 2009, defendants executed a mortgage on the property, but they defaulted on the mortgage in 2011 and plaintiff commenced this foreclosure action in 2012. Although plaintiff mistakenly requested a mandatory settlement conference and one was scheduled ( seeCPLR 3408[a]; 22 NYCRR 202.12–a [b][1] ), plaintiff later moved to be released from the conference requirement because defendants were not residents of the property. Defendants opposed the motion and, relying on CPLR 3408(e), they cross-moved for disclosure of certain information concerning the ownership of their mortgage. Supreme Court, among other things, granted plaintiff's motion and denied defendants' cross motion. Defendants now appeal.
Inasmuch as there is no dispute that defendants did not reside at the mortgaged premises, Supreme Court correctly concluded that CPLR 3408 was inapplicable and granted plaintiff's motion to be released from the mandatory settlement conference. Since defendants were not “resident[s] of the property subject to foreclosure” (CPLR 3408[a] ), they “[were] not entitled to a settlement conference or the other protections accorded to homeowners in residential foreclosures” ( Marcon Affiliates, Inc. v. Ventra, 112 A.D.3d 1095, 1096, 977 N.Y.S.2d 438 [2013];see Brandywine Pavers, LLC v. Bombard, 108 A.D.3d 1209, 1210, 970 N.Y.S.2d 653 [2013] ).
Defendants' contention concerning Supreme Court's cautionary footnote directed at defendants' counsel is not properly before us as neither defendants nor counsel were aggrieved thereby ( see Vanderlyn v. Daly, 97 A.D.3d 1053, 1055 n. 3, 949 N.Y.S.2d 266 [2012],lv. denied20 N.Y.3d 853, 2012 WL 5950396 [2012];Matter of Valenson v. Kenyon, 80 A.D.3d 799, 799, 914 N.Y.S.2d 753 [2011];Matter of Grace R., 12 A.D.3d 764, 765, 784 N.Y.S.2d 210 [2004] ). Defendants' remaining contentions have been rendered academic by this decision.
ORDERED that the order is affirmed, with costs. PETERS, P.J., GARRY, EGAN JR. and CLARK, JJ., concur.