                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 18, 2015                     520095
________________________________

TUTHILL FINANCE, A LIMITED
   PARTNERSHIP,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

TAMMY CANDLIN, as Administrator
   of the Estate of JOHN
   CANDLIN, Deceased,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   April 22, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Clark, JJ.

                             __________


      Robinowitz Cohlan Dubow & Doherty, LLP, White Plains (Bruce
Minkoff of counsel), for appellant.

      Clair & Gjertsen, Scarsdale (Ira S. Clair of counsel), for
respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered January 17, 2014 in Ulster County, which, among other
things, denied plaintiff's motion for summary judgment.

      John Candlin (hereinafter decedent) owned a 31-acre parcel
in Ulster County that included a horse farm as well as a single-
family home where he and his family resided. In May 2007,
decedent mortgaged the entire parcel in exchange for a 15-year
$285,000 loan with an 11.5% adjustable interest rate. Decedent
                              -2-                520095

defaulted on the loan payments beginning in March 2010.
Plaintiff commenced this foreclosure action in January 2011 and
decedent's answer asserted affirmative defenses including, among
others, that plaintiff failed to fully comply with the notice
requirements of RPAPL 1304.

      Following decedent's death in January 2012, defendant Tammy
Candlin (hereinafter defendant), his wife, became administrator
of his estate. Plaintiff thereafter moved to, among other
things, substitute defendant for decedent and grant plaintiff
summary judgment on its foreclosure action. Supreme Court
granted that part of the motion as sought to substitute defendant
for decedent, but found factual issues as to whether the loan was
a commercial loan, as contended by plaintiff, or a "home loan"
(see RPAPL 1304 [5] [a]) subject to specific statutory notice
provisions. The court further found that plaintiff's motion
papers had not adequately established compliance with all
pertinent statutory procedures in the event that the loan was
determined to be a home loan. Summary judgment was denied
without prejudice and with leave to renew on proper proof.
Plaintiff appeals.

      Plaintiff contends that it established as a matter of law
that the loan did not fall within the definition of a "home loan"
as set forth in RPAPL 1304 (5) (a). The statutory definition of
a home loan contains four elements, and the only one in dispute
here is whether the debt was incurred "primarily for personal,
family, or household purposes" (RPAPL 1304 [5] [a] [ii]). This
was a mixed use property where decedent operated an equine
business but also lived on the property in a single-family house
with his family. The loan does not indicate that the funds were
being provided for a business purpose, and the mortgage
incorporated language typically used in residential mortgages.
Although plaintiff now claims that the loan was made to assist
decedent's equine operations, defendant states in her affidavit
that only a small percentage of the funds were used for the
business. Inasmuch as there are factual issues as to whether the
loan was a statutorily defined home loan (cf. Pritchard v Curtis,
101 AD3d 1502, 1504 n 1 [2012]), Supreme Court correctly denied
plaintiff summary judgment on this issue. Moreover, in light of
such factual issues, we decline defendant's request that we
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search the record and decide the issue as a matter of law in her
favor.

      Plaintiff further argues that, even if the loan was a home
loan, it complied with all the applicable notice requirements.
We are unpersuaded. "RPAPL 1304 requires a lender to notify a
borrower of an impending legal action at least 90 days before a
foreclosure action is commenced, using specific statutory
language printed in 14-point type [and] [t]he notice must be sent
to the borrower by first-class mail as well as registered or
certified mail" (TD Bank, N.A. v Leroy, 121 AD3d 1256, 1257
[2014] [citations omitted]). The notice in the record has type
that is smaller than the statutorily required 14-point type (see
RPAPL 1304 [1]). Although plaintiff submitted an affidavit from
one of its partners stating that the notice had been properly
mailed, such individual did not purport to have personal
knowledge of such fact nor is a contemporaneous affidavit of
service included in the record (see TD Bank, N.A. v Leroy, 121
AD3d at 1257-1258). The record also does not clearly establish
that the notice was, as required by statute, sent in "a separate
envelope from any other mailing or notice" (RPAPL 1304 [2]).

      The remaining arguments have been considered and are either
academic or unavailing.

     Garry, Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
