Wright v Mitchell
2012 NY Slip Op 30934(U)
April 3, 2012
Sup Ct, New York County
Docket Number: 114804/10
Judge: Eileen A. Rakower
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SUPREME COURT OF THE STATE O F NEW YORK
NEW YORK COUNTY
Justice
Index Number : 114804/2010
WRIGHT, KATRINA
INDEX NO.
VS
MOTION DATE
MITCHELL, TOMMIE
MOTION SEQ. NO.
Sequence Number : 003
3
.
RENEWAL
The followlng papem, numbered 1 to
Notice of MotionlOrder to Show Cause
Answerlng Affidavltn
- Exhibits
, were read on thls motlon tolfor
-Afidnvlta - Exhlbltf
IN O W .
I NOW.
INo(d.
Replylng Affldavlts
Upon the forqolng papem, It I ordered that thls motlon is
s
UNFILED JUDGMENT
Thia judgment has not been entered by the County Ckwk
snd Wce of entry cannot be served based h m . To
counsel or authorized repreaentethre m t
m
h p e w a the Judgment clerkâs Dedr (
t
h
_____
m,
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Dated:
9 0 I,z
1. CHECK ONE: .....................................................................
P
........................... MOTION IS: 0GRANTED 0DENIED
CHECK IF APPROPRIATE: ................................................
nSETTLE ORDER
2. CHECK AS APPROPRIATE:
3.
NON-FINAL DISPOSITION
CASE DISPOSED
0DO NOT POST
0GRANTED IN PART 0OTHER
0SUBMIT ORDER
uFIDUCIARY APPOINTMENT
REFERENCE
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c
Plaintiff,
Index No. 114804/10
Seq No.: 003 & 004
- against -
Decision and Order
TOMMIE MITCHELL,
Plaintiff, Katrina Wright, brings this action seeking to set aside and cancel a
deed to the premises known as 55 West 16lSt
Street New York, NY, as fraudulent and
void. The property at issue was owned by Dudley Mitchell (âDudleyâ). Dudley was
married to Ms. Wrightâs mother, Merlynda Edwards. Dudley died in 1994. In his
Will, Dudley bequeathed all his title and interest in the subject property to his wife,
Ms. Edwards. Ms. Edwards died in 1998. On February 24,201 1, Ms. Wright became
the Administratrix of Dudley Mitchellâs estate. Ms. Wright discovered that a deed to
the property, which had purportedly been executed in 1990, had been recorded with
the City Register in 20 10. The deed showed a transfer of the property from Dudley
to his son, defendant T o m i e Mitchell. The deed is signed by Dudley and is
acknowledged by a Notary Public. Thereafter, Ms. Wright commenced this action,
alleging that the deed is a forgery.
Ms. Wright moved for summary judgment on August 24,201 1. In support of
her motion, Ms. Wright submitted the affidavit of Marc. D. Moel, General Counsel
of BlumbergExcelsior, Inc., the company that distributed the deed form. Mr. Moel
affirmed that the deed could not have been signed in 1990 because the document
contained the notation âwww.blurnberg.comâprinted at the top ofthe page. Mr. Moel
stated that Blurnberg forms containing this notation did not exist prior to 2002.
By order dated December 9,201 1, the court denied Ms. Wrightâs motion for
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summary judgment, reasoning as follows:
With respect to the deed, Ms. Wright does not dispute the authenticity
of the signature, but rather submits Mr. Moelâs affidavit as prima facie
evidence that the deed could not have been executed while Dudley was
still alive, However, the âweight and valueâ attached to the
acknowledgment of Dudleyâs signature by a Notary âsurvives contrary
proof,â and is âsufficient to send a case to the jury so that it may decide
between the probative force of the certificate [of acknowledgment] and
the evidence produced in rebuttal.â (In re Goodmanâs Will,2 AD2d 558
[ 1st Dept. 1956J).Moreover, âthe contrary proof must be established
through disinterested witnesses, [and] must be clear and
convincing.â(ld. at 562).
Ms. Wright now moves to renew her prior motion for summary judgment and
directs the courtâs attention to the acknowledgment contained in the alleged deed. In
addition, Ms. Wright moves by Order to Show Cause for an order consolidating this
action with the Housing Court proceeding brought by Tommie Mitchell against her.
On February 15,2012, after the parties appeared in court, the court signed the OSC
and granted a temporary restraining order, which stayed the Housing Court
proceeding pending the hearing of Ms. Wrightâs motion for consolidation.
In her motion to renew, Ms. Wright directs the courtâs attention to the deedâs
Acknowledgment, purportedly signed by Notary Public Stanley Gross on September
12, 1990. The acknowledgment reads as follows:
ACKNOWLEDGMENT I NEW YORK STATE (RPL 309-a)
N
State of New York, County of New York s.s.:
On 12, day of Sept. 1990 before me, the undersigned,
personally appeared
Dudley Mitchell
ersonally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in hishedtheir capacity(ies),
and that by hishedtheir signature(s on the instrument, the individual(s), or the erson upon behal of which the individual(s)
acted, executed t e instrument.
fâ
R
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Ms. Wright notes that the Acknowledgment references Real Property Law $309-a and
employs the language mandated thereby, despite the fact that RPL $309-a did not
become law until 1997, three years after Dudleyâs death and seven years after the
deed was purportedly signed and acknowledged by Mr. Gross. Ms. Wright annexes
Chapter 179 of the Laws of New York, 1997. Chapter 179, $2 specifically provides
that âThe real property law is amended by adding a new section 309-a .,,.â (emphasis
added).
When the parties appeared on February 15,20 12, Tommie Mitchell indicated
that he had no response to the foregoing evidence, and has failed to submit any
affidavits or other documents in opposition to the motion to renew.
While in its prior order the court found that an issue of fact was presented by
the contradictory evidence of the Moel affidavit on the one hand, and the
acknowledgment of Dudleyâs signature by a Notary on the other, Ms. Wright has now
alerted the court that the signature of the Notary is not authentic, leaving no evidence
to rebut her showing that the Deed filed was invalid. Not only will Ms. Wright be
able to demonstrate by clear and convincing evidence that the deed is fiaudulent, but
there is no issue of fact presented. Specifically, the Notaryâs acknowledgment, which
cites to and quotes verbatim a statute not even in existence at the time of the
purported deed, and the pre printed Blumberg deed form itself was not in existence
at the time it was purportedly signed. The court further notes that the date upon
which Mr. Grossâs commission expires is altered on the face of the acknowledgment,
with the year stricken and another inserted, further challenging the authenticity of the
acknowledgment. Mr. Mitchell provides no opposition to these facts as presented and
they remain unrebutted.
Wherefore it is hereby
ORDERED that Ms. Wrightâs motion to renew is granted without
opposition; and it is further
ORDERED that upon renewal, the motion for summary judgment is
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granted; and it is further
ORDERED,ADJUDGED AND DECLARED that the deed dated September
12, 1990 fiom Dudley Mitchell to Tommie Mitchell for the subject property located
at 550 161St
Street, New York, and recorded in the office of the City Register for the
County of New York on October is canceled, and deemed void, and that the Clerk of
the City Register's Office for the County of New York where such deed was recorded
is further directed to strike said deed fiom the records and to make a notation on the
records of said office to the effect that said deed is null and void; and it is further
ORDERED that Ms. Wright's motion for consolidation is denied as moot and
the TRO is hereby lifted.
This constitutes the decision and order of the court. All other relief requested
is denied.
DATED: April 3,2012
EILEEN A. RAKOWER, J.S.C
UNFILED JUDGMENT
ThhJLdgmenthas not been entered by the County C k
and
ofentry cannot be served based h e m . To
abyR &try, counsel or authorized represantathrs murt
h
a the Judgment Clark's Dsrk (Room
t
Mlsr
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