O'Connor v O'Connor
Annotate this CaseDecided on August 9, 2013
Supreme Court, Kings County
Junior Lindell O'Connor, Plaintiff,
against
Jumol O'Connor et ano., Defendants.
19888/10
Plaintiff Attorney: Wingate, Kearney & Cullen, LLP, 45 main Street, Suite 1020, Brooklyn, NY 11201
Defendant Attorney for Jumol O'Connor: Glenn S. Riegler, Esq., Riegler & Berkowitz, 532 Broad Hollow Road, Suite 111, Melville, NY 11747
Defendant Attorney for Greenpoint Mortgage Funding, Inc.: Salamon, Gruber, Blaymore & Strenger, P.C., 97 Powerhouse Road, Suite 102, Roslyn Heights, NY 11577
David I. Schmidt, J.
Upon the foregoing papers, plaintiff Junior Lindell O'Connor moves for an order, pursuant to CPLR 3212, granting him summary judgment on his complaint. Defendant Jumol O'Connor cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint.
Plaintiff commenced this action seeking to void a deed to the subject property at 692 East New York Avenue and cancelling a mortgage thereon in favor of defendant Greenpoint Mortgage Funding, Inc. (Greenpoint). Plaintiff took title to the property by deed dated December 2, 1982. By deed dated August 13, 2004, the property was purportedly conveyed to defendant. The deed contains a signature acknowledged by a notary public, Gertruce Goldhirsch, to be that of plaintiff. The deed was recorded on November 15, 2004. On December 12, 2005, defendant executed a mortgage on the property in favor of Greenpoint to secure a loan in the amount of $191,500.00.
On August 11, 2010, plaintiff commenced this action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to set aside the deed and mortgage, claiming that his signature on the deed was forged. Plaintiff alleges he discovered the purported transfer to defendant in June 2010, while he was investigating the possibility of selling the property. On July 16, 2012, plaintiff offered testimony at an examination before trial (EBT). When shown a copy of the subject deed at his EBT, plaintiff testified that he did not remember ever seeing the document, that the signature at the bottom was not his, that he did not know an individual named Gertruce Goldshirsch, the notary who acknowledged the deed and that he was not present in New York during the year 2004. On January 31, 2013, plaintiff filed a note of issue. On March 28, 2013, plaintiff brought the instant motion for summary judgment. [*2]
In order to obtain summary judgment, a movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]). Failure to make such prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the moving party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial (Gilbert Frank Corp., 70 NY2d at 967 [1988]).
CPLR 4538 provides that "[c]ertification of the acknowledgment or proof of a writing, except a will, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so." "A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed' " (ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801, 803 [2012], quoting Son Fong Lum v Antonelli, 102 AD2d 258, 260-261 [1984], affd 64 NY2d 1158 [1985]). The proof required to overcome the presumption must be "so clear and convincing as to amount to a moral certainty" (Albany County Sav. Bank v McCarty, 149 NY 71, 80 [1896]; see Paciello v Graffeo, 32 AD3d 461, 462 [2006]).
In support of his motion for summary judgment, plaintiff relies entirely on his EBT testimony and a separate affidavit wherein he states, inter alia, that he never saw the subject deed prior to this action, that the signature on the deed is not his, states that he does not know an individual named Gertruce Goldhirsch that was not in the United States at any time in 2004. However, this proof, by itself, is insufficient to show proof of forgery, or to rebut the presumption of due execution (see Clark v Mtge. Servs. Unlimited, 78 AD3d 1104 [2010]; Osborne v Zornberg, 16 AD3d 643, 644 [2005]; Demblewski v Demblewski, 267 AD2d 1058 [1999]). Without additional evidence such as the affidavit of a handwriting expert or proof establishing that plaintiff was not present in New York State on August 13, 2004, the court cannot find that plaintiff has presented evidence so clear and convincing so as to amount to a moral certainty that the deed is forged (cf. Bernard-Cadet v Gobin, 94 AD3d 1030, [2012]; Clark, 78 AD3d at 1105). While this court would have taken into consideration any notable style difference between the signature on the deed and the signatures on plaintiff's driver's license and passport, the signatures of plaintiff which appear on these official documents bear a close resemblance to the signature on the deed.
As a result, plaintiff's motion for summary judgment is denied.
Since defendants are entitled to the presumption that the deed is valid (see Stein v Doukas, 98 AD3d 1026 [2012]) and plaintiff has failed to proffer evidence sufficient to rebut the presumption and raise an issue of fact as to whether the deed is forged, defendant's cross motion for summary judgment is granted. The complaint is hereby dismissed.
The foregoing constitutes the decision and order of the court.
E N T E R,
J. S. C.
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