In Eastern Sav. Bank, FSB v Belches, 2010 NY Slip Op 50850(U) (Sup. Ct. Kings County 2010), Justice Martin Schneier grants Eastern Sav. Bank's motion for summary judgment on the grounds that the defendant's opposition papers were "wholly conclusory and not responsive to the [Plaintiff's] moving papers."
The 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 a triable issue of fact (CPLR Section 3212 (b); Alverez v Prospect Hosp., 68 N.Y.2d 320 (1986); Zuckerman v City of New York, 49 N.Y.2d 557 (1980); Frances Megafu v Tower Insurance Company of New York, 2010 Slip Op. 03883 (2d Dept.)). However, once the moving party has satisfied this obligation, the burden then shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, supra) "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 A.D.2d 728, 729 (2d Dep't1995)).
In a mortgage foreclosure action in order to establish its prima facie entitlement to summary judgment as a matter of law the plaintiff must submit the mortgage and unpaid note, along with evidence of default. (U.S. Bank Nat. Assn. TR U/S 6/01/98 (Home Equity Loan Trust 1998-2) v. Alvarez, 49 AD3d 711 (2d Dept. 2008); Marculescu v Ovanez, 27 A.D.3d 701 (2d Dept. 2006)).
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