| Aames Funding Corp. v Houston |
| 2007 NY Slip Op 07642 [44 AD3d 692] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Aames Funding Corporation, Respondent, v Leonard W.Houston et al., Appellants, et al., Defendants. |
—[*1] Lucille Houston, Middletown, N.Y., appellant pro se. Steven J. Baum, P.C., Buffalo, N.Y. (Charles D.J. Case of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Leonard W. Houston and LucilleHouston separately appeal from (1) an order of the Supreme Court, Orange County (Owen, J.),dated July 26, 2006, which, inter alia, granted the plaintiff's motion for a judgment of foreclosureand sale based upon, among other things, a prior order of the same court dated May 11, 2005,inter alia, granting the plaintiff's motion for summary judgment, and (2) a judgment offoreclosure and sale of the same court entered August 15, 2006.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review andhave been considered on the appeal from the judgment (CPLR 5501 [a] [1]).[*2]
"[I]n an action to foreclose a mortgage, a plaintiffestablishes its case as a matter of law through the production of the mortgage, the unpaid note,and evidence of default" (Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482, 482[2003]; see Village Bank v Wild Oaks Holding, 196 AD2d 812 [1993]). The plaintiffproduced the note and mortgage executed by the defendant Leonard W. Houston (hereinafterHouston) as well as evidence of Houston's nonpayment. Accordingly, it was incumbent uponHouston and the defendant Lucille Houston (hereinafter the defendants), who holds title to thesubject premises with Houston, to produce evidentiary proof in admissible form sufficient torequire a trial of their defenses (see State Bank of Albany v Fioravanti, 51 NY2d 638,647 [1980]; Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [1997];Village Bank v Wild Oaks Holding, 196 AD2d 812 [1993]). The defendants failed to doso. Therefore, the Supreme Court properly granted the plaintiff's motion for summary judgmentand its subsequent motion for a judgment of foreclosure and sale.
The defendants' remaining contentions are without merit. Schmidt, J.P., Santucci, Florio andDillon, JJ., concur.