Bayview Loan Servicing, LLC v FM Realty Enters., LLC

Bayview Loan Servicing, LLC v FM Realty Enters., LLC 2009 NY Slip Op 05940 [64 AD3d 672] July 21, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 2, 2009

Bayview Loan Servicing, LLC, Respondent,
v
FM Realty Enterprises, LLC, Appellant.

—[*1] Herbert L. Haas, Huntington, N.Y., for appellant.

Herzfeld & Rubin, P.C., New York, N.Y. (Arlene Eudora Lewis of counsel), for respondent.

In an action to foreclose a mortgage, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated October 3, 2008, as granted the plaintiff's motion for summary judgment on the issue of liability and to appoint a referee to compute the amount due the plaintiff.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment on the issue of liability and to appoint a referee to compute the amount due the plaintiff is denied.

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law (see Household Fin. Realty Corp. of N.Y. v Winn, 19 AD3d 545 [2005]; Sears Mtge. Corp. v Yaghobi, 19 AD3d 402 [2005]; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527 [2005]; US Bank Trust N.A. Trustee v Butti, 16 AD3d 408 [2005]). However, in opposition, the defendant raised an issue of fact as to whether the plaintiff was the entity entitled to payment on the note and mortgage. Florio, J.P., Miller, Covello and Austin, JJ., concur.