Citibank v. Pierre

—In an action to foreclose a mortgage, the defendants Moliere and Flerina Pierre appeal from a judgment of the Supreme Court, Nassau County (McCarty, J.), entered January 3, 1994, which, upon an order of the same court entered May 10, 1993, granting the plaintiff’s motion for summary judgment, and a decision of the same court dated December 1, 1993, deciding the plaintiff’s motion for a judgment of foreclosure and sale, directed foreclosure and sale. The defendants’ notice of appeal from the order entered May 10, 1993, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]). Ordered that the judgment is affirmed, with costs. The plaintiff established its entitlement to summary judgment in this action to foreclose on the appellants’ mortgage by offering proof of the mortgage and a default in payment (see, Dime Sav. Bank v Rand, 204 AD2d 261; European Am. Bank v Strab Constr. Corp., 196 AD2d 479). It was incumbent upon the appellants to establish, by proof in admissible form, the existence of a triable issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320; Mlcoch v Smith, 173 AD2d 443). They failed to do so. Therefore, summary judgment was properly granted. The appellants’ remaining contentions are without merit. Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.