In this action to foreclose a mortgage, plaintiff Tuthill Finance, a Limited Partnership (hereinafter referred to as "plaintiff"), moves pursuant to CPLR § 3012 for summary judgment in its favor and for an order striking the defendant's affirmative defenses, appointing a referee to ascertain and compute the amount due to the plaintiff, substituting Tammy Candlin as Administrator of the Estate of John Candlin as a party defendant pursuant to CPLR § 105 and amending the caption by striking therefrom the remaining defendants shown herein as "John Doe # 1 through John Doe # 10."

Plaintiff commenced this action foreclose on a mortgage in favor of premises known as 1480 Route 32, Saugerties, New York 12477 given by defendant John Candlin ("Mr. Candlin") on May 29, 2007 to secure a loan in the amount of $285,000.00. The note was originally executed in favor of Tuthill Finance, which assigned the instrument to Sovereign Bank by endorsement, which assigned the instrument to plaintiff.

Mr. Candlin allegedly defaulted on his March 1, 2010 monthly loan payment and on subsequent installments, whereupon the plaintiff elected to accelerate the loan. Plaintiff commenced the instant mortgage foreclosure action on January 13, 2011. Mr. Candlin served an answer raising three affirmative defenses; the first affirmative defense alleges that plaintiff failed to comply with RPAPL §1304, which requires that a lender give at least 90 days notice prior to commencing an action against a borrower when the underlying loan constitutes a "home loan" as defined in the statute; the second affirmative defense alleges plaintiff failed to comply with the provisions of 595-a of the New York State Banking Law as well as the provisions of RPAPL § 1304; and the third affirmative defense alleges that the complaint fails to allege a valid cause of action in that RPAPL §1302 requires that a complaint in actions relating to high cost home loans or subprime home loans contain certain affirmative allegations and the complaint herein fails to contain the necessary allegations.

Thereafter, plaintiff amended its complaint to assert an affirmative allegation that plaintiff has complied with the provisions of RPAPL §§ 1306, 1304 and Banking Law § 595-a.

Plaintiff now moves for summary judgment together with dismissal of defendant's affirmative defenses. In support of its motion, plaintiff submits, inter alia, a copy of: the Notice of Pendency; the summons; the amended complaint; the affidavits of service; the verified answer; the note; the mortgage; an appraisal of the premises; and supporting affidavits.

The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v New York Univ. [*2]Medical Center, 64 NY2d 851 [1985]).^[FN1] Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Medical Center, 64 NY2d 851 [1985]).

In support of its motion for summary judgment, plaintiff submits an affidavit of Jeffrey Wain, President of Wainco, Inc., the general partner of plaintiff. Mr. Wain points to copies of the note and mortgage, and argues that Mr. Candlin executed, acknowledged and delivered the note and mortgage to plaintiff, and then defaulted under the terms of the note and mortgage. Mr. Wain further alleges that Mr. Candlin's affirmative defenses are devoid of merit because the underlying premises are primarily commercial in nature and the premises being foreclosed was not a "home loan" for purposes RPAPL § 1304 and is exempt from the requirements of the statutes relied upon in Mr. Candlin's affirmative defenses. He argues that notwithstanding, plaintiff indeed complied with Banking Law § 595-a and RPAPL § 1304. Mr. Wain states that the mortgaged property is a 31.7 acre horse farm on which Mr. Candlin conducted various equine businesses. He states that at the time the loan was made, the premises contained an indoor riding arena, stables, barns, paddocks and a race track as well as a single family home which was occupied by Mr. Candlin and his family. He states that the loan was made in order for Mr. Candlin to pay debts and expenses incurred in connection with the various businesses which operated on the property and thus was not primarily for personal, family or household purposes. He further alleges that because the debt incurred by Mr. Candlin was not for personal, family, or household purposes, it cannot be a "high cost home loan."

A "home loan" is defined under RPAPL §1304(5)(b) to mean a home loan, including an open-end credit plan, other than a reverse mortgage transaction, in which: "(i) the principal amount of the loan at origination did not exceed the conforming loan size that was in existence at the time of origination for a comparable dwelling as established by the federal national mortgage association; (ii) the borrower is a natural person; (iii) the debt is incurred by the borrower primarily for personal, family, or household purposes; (iv) the loan is secured by a mortgage or deed of trust on real estate [*3]upon which there is located or there is to be located a structure or structures intended principally for occupancy of from one to four families which is or will be occupied by the borrower as the borrower's principal dwelling; and (v) the property is located in this state." Banking Law §6- l(1)(e) defines a "home loan," in pertinent part, similarly.

Plaintiff has failed to provide sufficient proof that the loan at issue does not fall under the definition of a "home loan." Both RPAPL §1304(5)(b)(iv) and Banking Law §6- l(1)(e)(iv) simply require "a structure or structures intended principally for occupancy of from one to four families which is or will be occupied by the borrower as the borrower's principal dwelling." The mortgage as well as the affidavit of service, which were submitted by the plaintiff in support of its motion, indicate that Mr. Candlin resided at the premises. In fact, the mortgage specifically required that the premises be used as Mr. Candlin's principal residence. In addition, the Appraisal Report submitted by plaintiff demonstrates that "the subject property is presently occupied by the owner who lives in the home. The entire facility is also considered as owner occupied."

Inasmuch as plaintiff has failed to make a prima facie showing that this was not a "home loan" as defined by RPAPL §1304(5)(b)(iv) and Banking Law §6-1(1)(e)(iv) and, therefore, exempt from the relevant statutes, the Court must ascertain whether or not the plaintiff has satisfied the statutory notice requirements. The Court finds that plaintiff has failed to do so. Accordingly, its motion for summary judgment and related relief is denied without prejudice and with leave to renew upon proper proof.

That branch of the motion by plaintiff for leave to amend the caption substituting Tammy Candlin as Administrator of the Estate of John Candlin for John Candlin as a party defendant and to amend the caption is granted.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for defendant. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

SO ORDERED.

ENTER.