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REPUBLIC NATIONAL BANK OF NEW YORK, ETC., RESPONDENT, v. MARIE ZITO, ETC., ET AL., APPELLANTS, ET AL., DEFENDANTS.

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.

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REPUBLIC NATIONAL BANK v. ZITO
(Feb 26, 2001)