Green Point Savings Bank v. Spivey

253 A.D.2d 410, 676 N.Y.S.2d 228, 1998 N.Y. App. Div. LEXIS 8783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 3, 1998
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants appeal from a judgment of the Supreme Court, Queens County (Durante, J.), dated July 28, 1997, which, upon an order of the same court dated May 14, 1996, inter alia, granting the plaintiff’s motion for summary judgment, and upon a decision of the same court dated June 17, 1997, directed foreclosure and sale. The defendants’ notice of appeal from the decision dated June 17, 1997, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

The plaintiff bank made a prima facie showing that it was entitled to a judgment of foreclosure as a matter of law by offering proof that the mortgagor executed the loan documents and defaulted on the payments (see, Fairfield Affiliates v Rosenbaum, 232 AD2d 522; ICC Bridgeport Ltd. Partnership v Primrose Dev. Corp., 221 AD2d 417). The burden then shifted to the mortgagor to demonstrate, by admissible evidence, that there were genuine issues of material fact which required a trial (see, Union State Bank v Blankfort, 222 AD2d 430, 431). The mortgagor’s conclusory allegations that the plaintiff bank failed to provide a payment coupon book and other information about the mortgage were insufficient to defeat the motion for summary judgment (see, European Am. Bank v Abramoff, 201 AD2d 611). Inasmuch as the mortgagor failed to sustain her burden, the Supreme Court properly granted the plaintiffs motion for summary judgment and directed foreclosure and sale. Bracken, J. P., Thompson, Sullivan and Pizzuto, JJ., concur.