Bryant v Bryant
Annotate this CaseDecided on December 20, 2007
Sur Ct, Bronx County
George Henry Bryant, As Administrator of the Estate of Mary Bryant, Plaintiff,
against
Dennis Bryant, Defendant.
117019/03 234-M/06
The appearances are as follows:
Lucas & Lucas, Esqs. (Carl Lucas, Esq., of Counsel) and Radin & Kleinman, Esqs. (Abraham N. Kleinman, Esq., of Counsel) for George Henry Bryant, plaintiff
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C. (Stephen I. Wohlberg, Esq., of Counsel),
for Dennis Bryant, defendant.
Lee L. Holzman, J.
The plaintiff, the administrator of the estate, commenced this action in the Supreme Court,
New York County, to set aside a deed ("the New York deed"), purportedly executed on
December 13, 2000, conveying the decedent's interest in premises 2374 Adam Clayton
Boulevard, New York, New York to the defendant. The plaintiff and the defendant are two of the
decedent's sons. The action was transferred to this court and a bench trial was held.
.The decedent died on April 7, 2001, at the age of 88. Her distributees are four
children and five grandchildren. The New York deed was not recorded until June 1, 2001;
approximately five and one-half months after it was purportedly executed and approximately
seven weeks after the decedent's death. Although the plaintiff indicated at the inception of the
trial that he was relying upon the alternative theories of forgery and undue influence to set aside
the deed, the only proof [*2]adduced at trial was on the issue of
forgery. Consequently, this is the only issue that will be addressed.Eleven exemplars of the
decedent's handwriting were admitted into evidence, including her signature on a deed executed
by the decedent on the same date as the New York deed, conveying to the defendant the
decedent's interest in a residence in Irving, Texas where the defendant resided ("the Texas
deed"). Caroline Kurz, a forensic document examiner since 1985, testified as an expert witness.
She opined that although the same person signed all of the exemplars in evidence, a different
person signed the New York deed. On cross-examination, the expert agreed that there are
numerous variations in the decedent's signature on several of the exemplars in evidence, but she
maintained that such variations are usual or common, and do not constitute indicia of a forgery.
Nonetheless, based primarily upon the following factors, she concluded that the New York deed
was not signed by the same person who signed the exemplars in evidence: (1) the lower case
letters in both the decedent's first and last names on the New York deed are much smaller than
those on of the exemplars in evidence and, consequently, on the New York deed, there is a
greater difference in the proportion between the capital letters "M" and "B" of the decedent's first
and last names and the lower case letters compared to the exemplars in evidence; and (2) the flow
or rhythm of the signature on the New York deed differs from the exemplars in overall
appearance, including (a) there is a line in the capital "B" on the New York deed that appears to
have been made separately, whereas no separate line appears in the same capital letter in the
exemplars, (b) the lower case letters "ary" in "Mary" on the New York deed are almost upright,
while in the exemplars, these letters have more of a slant, and (c) the lower case "a" in "Bryant"
on the New York deed is smaller than any of the other lower case letters appearing in any of the
exemplars. The expert conceded during cross-examination that she could not provide a precise
definition for either flow or rhythm and that, in many ways, authenticating a signature is more of
an art than a science.
The defendant testified that prior to moving to Texas, he was a real estate broker in New York for approximately 30 years. He claimed that he paid all of the consideration for the New York real property, but title to that property was initially held in the names of himself, his girlfriend and the decedent but, thereafter title was transferred and held solely in the decedent's name. Nonetheless, the defendant contends that he always paid the taxes for the property and took care of all of the problems with tenants. The defendant also testified that, over the years, he purchased several other properties, the title to which were held in the decedent's name. No documentary proof was offered to support any of these contentions.
During a pre-trial deposition, the defendant testified that the decedent executed both the New York and Texas deeds at a hospital in Texas on December 13, 2000. At the trial, hospital records were produced showing that the decedent was not a patient in that hospital on December 13, 2000. The defendant testified with certainty at the trial that both deeds were signed in a nursing home. He contended that his testimony at the trial and at the deposition was consistent because, at his deposition, he had also stated that the deeds were executed in a ward, and upon reflection, he recalled that the decedent was in a private room while at the hospital but had been in a ward for part of her stay at the nursing home. However, records in evidence reveal that, on December 13, 2000, the decedent was not a patient in the nursing home that the defendant had testified about. The defendant also testified that in addition to himself, Dr. Gates, Dr. Gates' wife, a nurse, and Alfonso Greenidge were present when the two deeds were executed.
Alfonso Greenidge, the preparer of both the New York and Texas deeds, testified that although he practiced law in Texas when the deeds were prepared and executed, thereafter he was [*3]disbarred for mishandling escrow funds and other matters. He claimed that the acts resulting in his disbarment were committed without his knowledge by paralegals he had hired. Greenidge also testified that IRS liens were filed against him for failing to pay employee taxes, and he had filed for bankruptcy. This witness knows the Bryant family for over 50 years because he grew up in the same Bronx neighborhood where they resided. He is the father of two of the decedent's grandchildren. He referred to the defendant as his "brother" while he referred to the plaintiff as "Junior."
Both deeds were prepared in Greenidge's office. As both deeds bear the date December 1, 2000, Greenidge believed that both were probably prepared on that date. According to Greenidge, the defendant requested that the deeds be prepared and provided the information needed to prepare them. This witness could not explain why the date of execution December "13" was typewritten in the acknowledgment section on the New York deed but handwritten on the Texas deed, or why the New York deed contained a check mark next to the place where the grantor and the notary were to sign, but no such marks exist on the Texas deed. Similarly, he had no recollection or explanation for why the grantor's address on the two deeds differed. Greenidge recollected that both deeds were executed on the first floor of a nursing home that contained the name "Manor" and was located at or near Harry Hinds Boulevard. Greenidge's testimony about the execution of the two deeds essentially mirrored the defendant's testimony. Greenidge acted as the notary on both deeds, gave them to the defendant after they were executed, and did not charge for his services.
To establish that the decedent did receive medical treatment on December 13, 2000, the defendant's last witness was Dr. Padilla, the director of emergency services at Tri City Hospital in December 2000. That hospital, located on Siene Road in Dallas, Texas, was in the process of closing on that date and no longer exists. The hospital records that Dr. Padilla was able to obtain from a computer disk show that he saw the decedent at a physician's office building adjacent to the hospital on December 13, 2000. The decedent, who was ambulatory, complained of back pains due to a fall and was not admitted to the hospital.
As a threshold matter, the certificate of acknowledgment by Greenidge, the attorney who drafted the New York deed and notarized the signature thereon, not only creates a presumption that the decedent signed the deed, but also places the burden on the plaintiff to show by clear and convincing evidence that the signature is a forgery (Albany County Sav. Bank v McCarty, 149 NY 71 [1896]; Paciello v Graffeo, 32 AD3d 461, 462 [2006]; lv denied 8 NY3d 802 [2007]). Although more than a century ago it was stated that the clear and convincing evidence required to overcome the presumption of validity arising from a certificate of acknowledgment must be so strong "as to amount to a moral certainty" that the signature is a forgery (Albany County Sav. Bank v McCarty, supra at 81), today a party will meet the clear and convincing evidence standard by adducing evidence demonstrating it is "highly probable" that the signature is a forgery (PJI 1:64).Upon review of the New York deed and exemplars, the court credits the expert's opinion that, notwithstanding variations in the decedent's signature on several of the exemplars in evidence, the overall appearance of the decedent's signature on the New York deed differs from that on the exemplars in evidence. It is particularly troublesome that the decedent's signature on the Texas deed, which purportedly was executed at the same time and place as the New York deed and is a document of similar import, significantly differs from her signature on the New York deed. However, the court does not have to wrestle with deciding whether the above proof, or any other single item of proof, meets the clear and convincing standard of proof because, when all of the proof adduced is considered as a whole, it clearly and convincingly establishes that the New York deed [*4]is forgery.
Greenidge, who executed the certificate of acknowledgment, is not impartial, and lacks a reputation for honesty. He characterized his relationship to the defendant as being akin to a "brother", and he appeared to view the plaintiff as an annoying acquaintance. Moreover, this witness was disbarred for, inter alia, mishandling escrow funds. Of even greater significance, Greenidge and the defendant were the only two witnesses who testified that they saw the decedent execute the deeds. Notwithstanding their testimony, the evidence adduced clearly and convincingly establishes that the New York deed could not have been executed at any of the different places where they both testified it was executed. Although both testified inconsistently at various times as to the facility where the New York deed was executed, they both were consistent in asserting that the deed was presented to the decedent at a facility where she was a patient. Thus, their testimony is at odds with the testimony of Dr. Padilla, who testified that on the date in question the decedent was treated on an out-patient basis for back pain. It would be highly unusual for a deed, purportedly prepared on December 1st, to be presented to the decedent for signature 12 days later while she is at a hospital emergency center being treated for back pain. Moreover, although the defendant testified that Dr. Gates and his wife were present when the New York deed was executed, no proof was adduced to establish that Dr. Gates had any affiliation with Dr. Padilla, and Dr. Padilla did not testify that Dr. Gates was present when the decedent sought emergency treatment on December 13th.
Additional circumstances surrounding the purported execution of the New York deed also raise significant doubt as to its genuineness. It is true that two deeds might be prepared for the same client on the same date for two different parcels of property and that those deeds might not be identical in style or format, either by design, or merely because the differences have no practical import. Nonetheless, Greenidge had failed to explain why two deeds, which he testified were both prepared in his office on December 1,2000, contain the following differences: (1) the date of execution, the 13th, was typewritten on the New York deed and handwritten on the Texas deed; (2) only the New York deed contained check marks next to the signature lines for the grantor and the notary; and (3) a different address was used for the decedent in each of the deeds. The dates on which the two deeds were recorded is another factor leading to the conclusion that they were not, in fact, executed on the same date. The Texas deed was recorded on January 26, 2001, approximately a month and a half after it was executed, while the decedent was still alive. On the other hand, the New York deed was not recorded until June 1, 2001, approximately five and one-half months after it was executed, by which time, the decedent had been dead for approximately seven weeks.
For the reasons stated above, the court finds the plaintiff has established by clear and convincing evidence that the New York deed is a forgery. Consequently, the plaintiff is entitled to have the New York deed declared a nullity and its recordation vacated
Settle judgment.
SURROGATE
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