Ocwen Federal Bank FSB v. Miller

18 A.D.3d 527, 794 N.Y.S.2d 650, 2005 N.Y. App. Div. LEXIS 5068

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2005
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Jeffrey Miller and Elizabeth Miller appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered August 27, 2003, as granted those branches of the plaintiffs motion which were for summary judgment on the complaint insofar as asserted against them and dismissing their counterclaims, and for the appointment of a referee.

Ordered that the order is affirmed insofar as appealed from, with costs.

To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and mortgage note, its ownership of the mortgage, and the defendant’s default in payment (see First Union Mtge. Corp. v Fern, 298 AD2d 490 [2002]; Miller Planning Corp. v Wells, 253 AD2d 859 [1998]; Mahopac Natl. Bank v Baisley, 244 AD2d 466 [1997]).

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law, and the defendants Jeffrey Miller and Elizabeth Miller, in opposition, failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, the Supreme Court properly granted summary judgment on the complaint insofar as asserted against the appellants and properly directed the appointment of a referee.

The appellants’ remaining contentions are without merit. Florio, J.P., Krausman, Luciano and Fisher, JJ., concur.