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Bayview Loan Servicing, LLC v. FM Realty Enterprises

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


July 21, 2009

BAYVIEW LOAN SERVICING, LLC, RESPONDENT,
v.
FM REALTY ENTERPRISES, LLC, APPELLANT.

In an action to foreclose a mortgage, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated October 3, 2008, as granted the plaintiff's motion for summary judgment on the issue of liability and to appoint a referee to compute the amount due the plaintiff.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ANITA R. FLORIO, J.P., HOWARD MILLER, JOSEPH COVELLO and LEONARD B. AUSTIN, JJ.

(Index No. 10649/08)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment on the issue of liability and to appoint a referee to compute the amount due the plaintiff is denied.

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law (see Household Fin. Realty Corp. of N.Y. v Winn, 19 AD3d 545; Sears Mortgage Corp. v Yaghobi, 19 AD3d 402; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527; U.S. Bank Trust N.A. Trustee v Butti, 16 AD3d 408). However, in opposition, the defendant raised an issue of fact as to whether the plaintiff was the entity entitled to payment on the note and mortgage.

FLORIO, J.P., MILLER, COVELLO and AUSTIN, JJ., concur.

20090721

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