United States District Court, S.D. New York
ROBERT L. GORDONS, LLC, Plaintiff,
BANK OF AMERICA, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
M. FURMAN United States District Judge
case, familiarity with which is presumed, Plaintiff Robert L.
Gordons, LLC seeks to clear title to a New York apartment
that it acquired at a bargain price in a Sheriffs sale held
to enforce a judgment against Sherry and Thomas Kim (the
“Kims”), the previous owners of the apartment.
(Docket No. 1 (“Complaint”) ¶ 2). The
central question is whether the apartment is subject to a
lien held by Defendant U.S. Bank, NA. (as successor trustee
to Bank of America, N.A.) based on a mortgage that the Kims
had obtained on the apartment. That mortgage was executed by
the Kim's agent acting as their attorney-in-fact pursuant
to Durable General Power of Attorney (“POA”)
forms. (Id. ¶¶ 3, 10). Plaintiff argues
that the POA forms used by the Kims and their agent did not
comply with various technical requirements of New York law -
including, for example, the font size - and, accordingly,
that the lien is void. (Docket No. 23 (“Pl.
Mem.”), at 8-14). Defendant contends that the POA forms
were not defective and moves on that basis and others,
pursuant to Rule 12(b) of the Federal Rules of Civil
Procedure, to dismiss the Complaint. (Docket Nos.
review of the parties' motion papers, Defendant's
motion is granted. Plaintiff's argument rests entirely on
the plain language of the New York General Obligations Law
that was in effect when the Kims executed their POA forms.
Section 5-1501 of that Law established a “New York
Statutory Short Form” and provided that use of the form
was “in the creation of a durable power of
attorney” was “lawful” so long as certain
technical requirements were met. N.Y. Gen. Ob. Law §
5-1501.1-2 (1996). Critically, however, the law did not
provide that use of the statutory form was mandatory or that
any form deviating from the requirements set forth in the
statute would be invalid. To the contrary, the law expressly
provided that “no provision of this statute shall be
construed to bar the use of any other or different form of
power of attorney desired by the parties concerned.”
Id. § 5-1501.1. In other words, while the law
provided that use of the statutory short form to create a
durable power of attorney was lawful, it made plain that use
of the statutory short form, and strict adherence to its
requirements, was not required.
broadly (and consistent with the language of Section 5-1501
quoted above), New York courts have made clear that
“[a] power of attorney is to be interpreted so as to
accomplish its apparent purpose.” Benderson Dev.
Co. v. Schwab Bros. Trucking, 64 A.D.2d 447, 455 (4th
Dep't 1978). In accordance with that principle, courts
have rejected efforts to attack the validity of POA forms
based on allegations that they fail to comply with certain
technical requirements. See, e.g., Citibank, N.A. v.
Silverman, 84 A.D.3d 425 (1st Dep't 2011) (finding a
mortgage to be enforceable despite alleged defects because
the borrowers executed it, ratified it, and acknowledged its
validity). Instead, courts have held that the validity of a
power of attorney “turns upon whether the [signatories]
intended the form . . . to serve as a valid and binding power
of attorney.” Kermanshachi v. Republic Nat. Bank of
N.Y., S.A., No. 87-CV-2599 (JFK), 1991 WL 177282, at *3
(S.D.N.Y. Sept. 3, 1991). In light of these cases, not to
mention the language of the then-applicable Section 5-1501,
Plaintiffs claim fails as a matter of law. After all, it
rests entirely on technical deviations between the POA forms
used by the Kims and the requirements of the statute; the
Complaint contains no allegation that the parties to the POA
forms did not intend to create a valid and binding power of
foregoing reasons, Plaintiff fails to allege a plausible
claim, and the Complaint must be and is dismissed. The Clerk
of Court is directed to terminate Docket Nos. 17 and 24 and
to close the case.
 Defendant also moves to dismiss on two
grounds that implicate the Court's subject-matter
jurisdiction: lack of standing and the
Rooker-Feldman doctrine. (Docket No. 18, at 4-6).
The Court is required to address those arguments before
reaching the merits, see Steel Co. v. Citizens for Better
Environment, 523 U.S. 83, 94-95 (1998), but can do so
quickly. Plaintiff, as the owner of the apartment, plainly
has standing to seek to clear title to its own apartment. And
the Rooker-Feldman doctrine does not apply where, as
here, the case was commenced before entry of the state court
judgment. See, e.g., Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 281 (2005) (“The
Rooker-Feldman doctrine is confined to cases of the
kind from which it acquired its name: cases brought by
state-court losers ...