BANK PLAINTIFF RESPONDENT v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department.

M & T BANK, PLAINTIFF–RESPONDENT, v. RONALD R. BENJAMIN, ALSO KNOWN AS RONALD BENJAMIN, ALSO KNOWN AS RONALD R. BENJAMIN, ESQ., DEFENDANT–APPELLANT. (APPEAL NO. 2.)

CA 16–00552

Decided: December 23, 2016

PRESENT:  WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ. LAW OFFICE OF RONALD R. BENJAMIN, BINGHAMTON (MARY JANE MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. GETMAN & BIRYLA, LLP, BUFFALO (JOSEPH S. MONTAGNOLA OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  In this action by plaintiff lender to collect debts from defendant borrower, defendant appeals from a statement for judgment entered in favor of plaintiff.  Upon our review of the judgment, we conclude that Supreme Court properly granted plaintiff's motion for summary judgment on the complaint and dismissal of defendant's counterclaim, and denied defendant's cross motion for, inter alia, leave to amend his answer and disclosure.  We note with respect to the cross motion that defendant failed to support the request for leave to amend the answer with a copy of the “proposed amended ․ pleading clearly showing the changes or additions to be made” (CPLR 3025[b];  see Barry v Niagara Frontier Tr. Sys., 38 A.D.2d 878, 878).  We further note that, in opposition to the motion and in support of that part of the cross motion seeking disclosure, defendant did not demonstrate that “facts essential to justify opposition” existed but could not then be stated because they were within the exclusive knowledge and possession of plaintiff (CPLR 3212[f];  see HSBC Bank USA, N.A. v. Prime, L.L.C., 125 AD3d 1307, 1308).

With respect to the merits of plaintiff's motion, we agree with the court that the Term Note did not evidence a “home loan” within the meaning of the statute inasmuch as the debt was not “incurred by the borrower primarily for personal, family, or household purposes” (RPAPL 1304[5][a][ii] ).  In any event, as noted by the court, this is not an action for foreclosure of a mortgage.  Thus, the transaction is not subject to the notice and the judicial conference requirements of RPAPL 1304 and CPLR 3408(a).  Finally, we conclude that plaintiff demonstrated its entitlement to judgment as a matter of law with regard to defendant's allegation that he was the victim of predatory and deceptive lending practices by plaintiff, and defendant failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

Frances E. Cafarell

Clerk of the Court