| Wells Fargo Bank, N.A. v Webster |
| 2009 NY Slip Op 03163 [61 AD3d 856] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Respondent, v Scott E. Websteret al., Appellants. |
—[*1] Steven J. Baum, P.C., Amherst, N.Y. (Kyle C. DiDone and Caren Samplin of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants appeal from a judgment of the SupremeCourt, Putnam County (O'Rourke, J.), entered December 4, 2007, which, upon an amended orderof the same court dated August 27, 2007, granting the plaintiff's motion for summary judgment,inter alia, upon confirming the referee's report, directed the foreclosure and sale of the subjectproperty.
Ordered that the judgment is affirmed, with costs.
" '[I]n moving for summary judgment in 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[2003], quoting Village Bank v Wild Oaks Holding, 196 AD2d 812, 812 [1993]; see Aames Funding Corp. v Houston,44 AD3d 692, 693 [2007]). Here, the plaintiff bank sustained its initial burden ofdemonstrating its entitlement to judgment as a matter of law by submitting proof of the existenceof the note, mortgage, and consolidation agreement, and the defendants' default in payment(see Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [1997]; Home Sav. Bank vSchorr Bros. Dev. Corp., 213 AD2d 512, 512-513 [1995]; Zitel Corp. v Fonar Corp.,210 AD2d 221 [1994]). The plaintiff established, on its motion for summary judgment, thatthe defendants took out two mortgages on the subject property which were consolidated to forma single lien in the amount of $522,200, and that the defendants defaulted on their obligationsunder the note and mortgage. Accordingly, it was incumbent upon the [*2]defendants to demonstrate, by admissible evidence, the existence ofa triable issue of fact as to a bona fide defense (see State Bank of Albany v Fioravanti,51 NY2d 638, 647 [1980]; Naugatuck Sav. Bank v Gross, 214 AD2d 549 [1995];Zitel Corp. v Fonar Corp., 210 AD2d 221 [1994]). The defendants failed to raise such atriable issue of fact. Accordingly, summary judgment was properly granted to the plaintiff.
The defendants' remaining contentions are without merit. Rivera, J.P., Spolzino, Angiolilloand Balkin, JJ., concur.