Roosevelt Savings Bank, Respondent, v. Donna R. Jaffee et al., Appellants

Roosevelt Savings Bank, Respondent, v Donna R. Jaffee et al., Appellants. [643 NYS2d 619] [MAJORITY] In an action to foreclose a second mortgage, the defendants appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated February 1, 1995, which, inter alia, granted the plaintiff’s motion for summary judgment. Ordered that the order is affirmed, with costs. It is well established that in order to defeat a motion for summary judgment after the movant has made out a prima facie case the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR 3212 [b]). Thus, the opposing party must produce evidentiary proof in admissible form; mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient (see, Zuckerman v City of New York, 49 NY2d 557, 562). In the present case, Roosevelt Savings Bank (hereinafter the Bank) offered evidence that it was the current owner of the note and mortgage. It was undisputed that the defendants had defaulted under the terms of the mortgage. Moreover, the Bank submitted evidence that the defendants had received notice of the default and of the Bank’s intention to accelerate payment of the balance of the loan as permitted under the terms of the mortgage. In opposition, the defendants offered a self-serving and completely unsubstantiated allegation that the mortgage was no longer owned by the Bank, in an attempt to raise a triable issue as to both the ownership of the mortgage and the sufficiency of the notice of default. Under the circumstances, the defendants failed to show issues of fact sufficient to warrant a trial. O’Brien, J. P., Santucci, Joy and Florio, JJ., concur.