First American Funding, LLC v. Nelson

First Am. Funding, LLC v Nelson (2016 NY Slip Op 01462)

First Am. Funding, LLC v Nelson

2016 NY Slip Op 01462

Decided on March 2, 2016

Appellate Division, Second Department

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.

Decided on March 2, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.

2014-04963
(Index No. 9045/11)

[*1]First American Funding, LLC, appellant,

v

James Nelson, et al., defendants, Carol Nelson, respondent.

Davidson Fink LLP, Rochester, NY (Larry T. Powell of counsel), for appellant.

Michael A. Kinzer, LLC, Farmingdale, NY, for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated February 10, 2014, which denied its motion for summary judgment on the complaint, and for an order of reference.

ORDERED that the order is affirmed, with costs.

In this mortgage foreclosure action, the plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by producing the subject mortgage, the unpaid note, and an affidavit of its employee evidencing the default of the defendant Carol Nelson in her payment obligations under the subject home equity line of credit loan (see Sperry Assoc. Fed. Credit Union v Alexander, 116 AD3d 759). In opposition, Nelson raised a triable issue of fact with regard to the validity of her signature on the loan documents (see TD Bank, N.A. v Piccolo Mondo 21st Century, Inc., 98 AD3d 499, 500; see also Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 384). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint, and for an order of reference.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

MASTRO, J.P., LEVENTHAL, AUSTIN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court