U.S. Bank Trust N.A. Trustee v Butti
2005 NY Slip Op 01707 [16 AD3d 408]
March 7, 2005
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 18, 2005

U.S. Bank Trust National Association Trustee, Formerly Known as First Trust National Association Trustee, Respondent,
Thomas Butti, Appellant, et al., Defendants.


In an action to foreclose a mortgage, the defendant Thomas Butti appeals from a judgment of the Supreme Court, Westchester County (Bellantoni, J.), dated August 12, 2003, which, inter alia, upon an order of the same court entered January 17, 2003, granting the plaintiff's motion for summary judgment, directed the sale of the mortgaged premises as a single parcel.

Ordered that the judgment is affirmed, with costs.

"It is 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 evidence of default" (Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482 [2003] [internal quotation marks omitted]; see Village Bank v Wild Oaks Holding, 196 AD2d 812 [1993]). The plaintiff produced the note and mortgage executed by the appellant, as well as evidence of nonpayment. Accordingly, it was incumbent upon the appellant to produce evidentiary proof in admissible form sufficient to require a trial of his defenses (see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]). The appellant failed to do so. Therefore, the Supreme Court properly granted the plaintiff's motion for summary judgment. Santucci, J.P., Krausman, Mastro and Skelos, JJ., concur.