WASHINGTON MUTUAL BANK v. CONNOR (2009)

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), entered April 22, 2008, which denied its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Terrence C. O'Connor and Sheila K. O'Connor and for the appointment of a referee.

ORDERED that the order is reversed, on the law, with costs payable by the respondents, and the plaintiff's motion is granted.

The plaintiff established its prima facie entitlement to judgment as a matter of law by presenting the mortgage and unpaid note, along with evidence of the default (see U.S. Bank Natl. Assn. TR U/S 6/01/98 [Home Equity Loan Trust 1998-2 ] v. Alvarez, 49 A.D.3d 711, 854 N.Y.S.2d 171;  Daniel Perla Assoc., LP v. 101 Kent Assoc., 40 A.D.3d 677, 836 N.Y.S.2d 630;  U.S. Bank Trust N.A. Trustee v. Butti, 16 A.D.3d 408, 792 N.Y.S.2d 505;  Republic Natl. Bank of N.Y. v. O'Kane, 308 A.D.2d 482, 764 N.Y.S.2d 635).   In opposition, it was incumbent upon the defendants Terrence C. O'Connor and Sheila K. O'Connor “to produce evidentiary proof in admissible form sufficient to require a trial of [their] defenses” (U.S. Bank Trust N.A. Trustee v. Butti, 16 A.D.3d at 408, 792 N.Y.S.2d 505).   These defendants failed to do so.   Accordingly, the Supreme Court should have granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against those two defendants.