ROSE v. LEVINE

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Supreme Court, Appellate Division, Second Department, New York.

Steven ROSE, appellant, v. Julie LEVINE, et al., respondents, et al., defendants.

Decided: June 24, 2008

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ. Scheinert & Kobb, LLC, Nanuet, N.Y. (Joel L. Scheinert of counsel), for appellant. Banks Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondents.

In an action to foreclose three mortgages, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August 8, 2007, as denied his motion for summary judgment.

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

 “In order to establish its prima facie entitlement to summary judgment in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of default” (U.S. Bank Nat. 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;  see also Hoffman v. Kraus, 260 A.D.2d 435, 436, 688 N.Y.S.2d 575;  Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345).   The burden then shifts to the defendant to demonstrate “the existence of a triable issue of fact as to a bona fide defense to the action” (Mahopac Natl. Bank v. Baisley, 244 A.D.2d at 467, 664 N.Y.S.2d 345;  see Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265;  U.S. Bank Nat. 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).

 Here, the plaintiff failed to establish his prima facie entitlement to summary judgment by submitting the subject mortgages, the unpaid note, and evidence of default.   Further, triable issues of fact exist as to the validity of the mortgages, which, contrary to the plaintiff's contention, was not established in the divorce action between the defendants Julie Levine and Robert Levine (see Levine v. Levine, 37 A.D.3d 550, 830 N.Y.S.2d 252), as well as the amount of consideration the plaintiff, as opposed to his corporation, purportedly paid for the mortgages (see Dolphin v. Marocik, 222 A.D.2d 549, 635 N.Y.S.2d 84).

Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment.

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