Marine Midland Bank v. Brown

115 A.D.2d 523, 496 N.Y.S.2d 53, 1985 N.Y. App. Div. LEXIS 54933

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1985
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Brown appeals from (1) an order of the Supreme Court, Suffolk County (Baisley, J.), dated August 23, 1983, which, inter alia, granted plaintiff’s motion for summary judgment and (2) a judgment of the same court, entered March 6, 1984, which upon confirming a report of a Referee, directed a sale of the subject premises. The plaintiff cross-appeals from stated portions of the same judgment.

Appeal from the order dated August 23, 1983 dismissed (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]). Plaintiff’s cross appeal dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.20 [a], [f]).

Judgment affirmed.

Plaintiff is awarded one bill of costs.

On the motion for summary judgment, plaintiff established, by documentary evidence, both the facts underlying its cause of action and the lack of a triable issue of fact. The papers submitted in opposition failed to present evidentiary facts showing the existence of a genuine and substantial issue. In the absence of such an evidentiary showing, the motion for summary judgment was properly granted (see, La Touraine Coffee Co. v Deppe’s Diner, 109 AD2d 824; Federal Deposit Ins. Corp. v A-Leet Commercial Servs., 70 AD2d 627).

Since the appellant-respondent failed to contest the Referee’s report and the judgment entered thereon at Special Term, he cannot challenge it on appeal. Gibbons, J. P., Bracken, Lawrence and Kunzeman, JJ., concur.