Justice Carolyn Demarest
Cadelrock Joint Venture moved to punish Callender for contempt of and noncompliance with a subpoena. It also sought to compel him to comply with the subpoena and directing payment of Cadelrock’s attorney fees incurred in making the motion. Callender cross-moved to vacate the default judgment entered against him, and dismissal of the action arguing Cadelrock failed to serve notice required by Real Property Actions and Proceedings Law §1304 for actions involving “home loans.” After Callender default, Cadelrock sought to recover on the note, rather than bring an action to foreclose on the mortgage. The court stated proper service of the §1304 notice was a condition precedent to commencement of a foreclosure action, and Cadelrock’s failure to show strict compliance was grounds for dismissal of the action. Cadelrock argued §1304 did not apply to this action as it was not foreclosing on the mortgage and was not a “lender” as defined in the statute. The court found such argument unavailing, stating §1304 did not limit its application to foreclosure actions, and expressly applied to actions brought by an “assignee,” like Cadelrock. As there was no dispute §1304 notice was not provided by Cadelrock, Callender’s motion was granted in its entirety.
