Opinion
Submitted January 19, 2001
February 26, 2001.
In an action to foreclose a mortgage, the defendants Marie Zito and Betty Noto appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated December 20, 1999, as granted the plaintiff's motion, inter alia, for summary judgment on the complaint.
Reingold Tucker, P.C., New York, N.Y. (Abraham Reingold of counsel), for appellants.
Phillips, Lytle, Hitchcock, Blaine Huber, LLP, Rochester, N. Y. (Mark J. Moretti and Steven E. Laprade of counsel), for respondent.
Before: O'BRIEN, J.P., SANTUCCI, LUCIANO and SCHMIDT, JJ., concur.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v. City of New York, 49 N.Y.2d 557). Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers (see, Winegrad v. New York Univ. Med. Ctr., supra; Rentz v. Modell, 262 A.D.2d 545; Raia Indus. v. Young, 124 A.D.2d 722). It is also well settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and the evidence of default (see, Federal Home Loan Mtge. Corp. v. Karastathis, 237 A.D.2d 558, 559; DiNardo v. Patcam Serv. Sta., 228 A.D.2d 543; Wasserman v. Harriman, 234 A.D.2d 596; Village Bank v. Wild Oaks Holding, 196 A.D.2d 812).
Although the plaintiff submitted proof that the defendants executed a mortgage on their property, the plaintiff did not produce proof that they executed an underlying debt instrument, that is, an alleged home equity line of credit. Having failed to produce proof of an unpaid note, the plaintiff was not entitled to summary judgment as a matter of law (see, Winegrad v. New York Univ. Med. Ctr., supra). Accordingly, the Supreme Court erred in granting the plaintiff`s motion, inter alia, for summary judgment.