Hudson City Sav. Bank v Berry

Hudson City Sav. Bank v Berry 2016 NY Slip Op 02775 Decided on April 13, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
THOMAS A. DICKERSON
ROBERT J. MILLER, JJ.
2015-00199
2015-04445
(Index No. 5207/12)

[*1]Hudson City Savings Bank, respondent,

v

David Berry, et al., appellants, et al., defendants.

Thomas P. Hally, Poughkeepsie, NY, for appellants.

Cohn & Roth, Mineola, NY (Kevin T. MacTiernan of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants David Berry and Brenda E. Berry appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Forman, J.), dated September 8, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference, and (2) from an order of the same court dated November 3, 2014, which denied their motion for leave to reargue and renew their opposition to those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference.

ORDERED that the order dated September 8, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from so much of the order dated November 3, 2014, as denied that branch of the motion of the defendants David Berry and Brenda E. Berry which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 3, 2014, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants David Berry and Brenda E. Berry (hereinafter the appellants) and for an order of reference. The plaintiff established its prima facie entitlement to judgment as a matter of law by producing copies of the unpaid note, the mortgage, and evidence of default (see Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099; JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903; Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980). In opposition, the appellants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The appellants' remaining contentions are either without merit or not properly before [*2]this Court.

RIVERA, J.P., LEVENTHAL, DICKERSON and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court