Jagel Family Associates v. Havenbrook Associates

209 A.D.2d 585, 619 N.Y.S.2d 665, 1994 N.Y. App. Div. LEXIS 11456

Opinion

—In an action to foreclose a mortgage, the defendants Haven-brook Associates and Breskel Associates appeal from (1) an order of the Supreme Court, Suffolk County (Henry, J.), dated March 22, 1993, which, inter alia, granted the plaintiff’s motion for summary judgment and appointed a Referee in foreclosure, and (2) a resettled order of the same court, also dated March 22, 1993, which granted the same relief.

Ordered that the appeal from the first order is dismissed, as that order was superseded by the resettled order; and it is further,

Ordered that the resettled order is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

To obtain summary judgment the movant must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Here the plaintiff made such a showing (see, Zuckerman v City of New York, 49 NY2d 557). The appellants’ opposing papers did not constitute sufficient proof to defeat the motion for summary judgment, because they consisted entirely of conclusory statements and unsubstantiated allegations (see, Zuckerman v City of New York, supra).

There is no merit to the appellants’ contention that the documents submitted by the plaintiff in support of its motion for summary judgment were insufficient because they were photocopies. This evidence established the existence of the mortgage and note, which was not to become due until March 1991. Accordingly, the appellants’ contention that the Statute of Limitations barred the plaintiff’s claim is also without merit. Mangano, P. J., Thompson, Copertino and Hart, JJ., concur.