Butler, Fitzgerald, Fiveson & McCarthy, New York, NY
(David K. Fiveson of counsel), for appellant.
Ginsberg & Katsorhis, P.C., Flushing, NY (Kerry J.
Katsorhis of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B.
AUSTIN, JEFFREY A. COHEN, JJ.
DECISION & ORDER
from a judgment of the Supreme Court, Queens County (Augustus
C. Agate, J.), entered December 10, 2014. The judgment, after
a nonjury trial, declared that a power of attorney executed
on August 7, 2002, is null and void and cancelled that power
of attorney, directed the Register of the County of Queens to
vacate a deed to the subject real property dated October 30,
2005, and declared that the plaintiff is the "present
and sole owner" of the subject real property.
that the judgment is reversed, on the law, with costs, and
the matter is remitted to the Supreme Court, Queens County,
for the entry of an amended judgment dismissing the complaint
in its entirety and declaring that the power of attorney
executed on August 7, 2002, is not null and void and that the
plaintiff is not the present and sole owner of the subject
plaintiff commenced this action seeking, inter alia, a
judgment declaring null and void a power of attorney that he
purportedly executed in favor of his wife, the defendant
Emily Kanterakis (hereinafter Emily), on August 7, 2002, and
declaring null and void a note and mortgage held by the
defendant Rosedale Lend, LLC (hereinafter Rosedale). The
complaint alleges that Emily forged the plaintiff's
signature on the power of attorney.
record shows that Emily, acting as attorney-in-fact for the
plaintiff, obtained from the defendant Flushing Savings Bank,
FSB (hereinafter Flushing), a loan that was secured by a
mortgage on commercial real property (hereinafter the subject
property). By deed dated October 30, 2005, Emily, as
attorney-in-fact for the plaintiff, transferred title to the
subject property from the plaintiff to Minos Realty I, LLC
(hereinafter Minos), a company then wholly owned by the
plaintiff. The record contains an amendment to the Minos
operating agreement which states that, on December 22, 2005,
Emily was granted an ownership share in Minos and appointed
managing member. In 2007, Emily, as managing member of Minos,
obtained from the defendant Greenpoint Mortgage Funding, Inc.
(hereinafter Greenpoint), a loan for $1.375 million, secured
by a mortgage on the subject property. The proceeds of that
loan were used, in part, to repay the prior loan from
Flushing. Greenpoint subsequently assigned its interest in
that note and mortgage to Rosedale.
orders dated May 28, 2013, and August 1, 2013, respectively,
the Supreme Court directed the dismissal of the complaint
insofar as asserted against Greenpoint and Flushing.
nonjury trial, the Supreme Court found that the plaintiff
established that the 2002 power of attorney was forged. The
court issued a judgment declaring null and void the 2002
power of attorney, directing the Register of the County of
Queens to vacate the deed dated October 30, 2005, and
declaring the plaintiff to be the "present and sole
owner" of the subject property. Thus, the judgment had
the effect of invalidating the Rosedale mortgage. Rosedale
appeals from the judgment.
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
AMBRO Mtge. Group, Inc. v Stephens, 91 A.D.3d 801, 803,
quoting Son Fong Lum v Antonelli, 102 A.D.2d 258,
260-261, affd 64 N.Y.2d 1158; see Cunningham v
Baldari, 100 A.D.3d 584, 585). " [A] certificate of
acknowledgment should not be overthrown upon evidence of a
doubtful character, such as the unsupported testimony of
interested witnesses, nor upon a bare preponderance of
evidence, but only on proof so clear and convincing so as to
amount to a moral certainty'" (Beshara v
Beshara, 51 A.D.3d 837, 838, quoting Albany County
Sav. Bank v McCarty, 149 NY 71, 80; see John Deere
Ins. Co. v GBE/Alasia Corp., 57 A.D.3d 620, 622).
the plaintiff failed to rebut the presumption of validity of
the acknowledged power of attorney. Although an expert
opinion is not necessarily required in order to establish
that a document is a forgery, where an expert opinion is
offered, the expert must "state with reasonable
professional certainty that the signature at issue is not
authentic" (Banco Popular N. Am. v Victory Taxi
Mgt., 1 N.Y.3d 381, 384). The plaintiff failed to
present evidence authenticating the group of 31 exemplars
upon which the plaintiff's handwriting expert primarily
relied (see CPLR 4536; see also Banco Popular N.
Am. v Victory Taxi Mgt., 1 N.Y.3d at 384; Matter of
Dane, 32 A.D.3d 1233, 1234; Matter of James, 17
A.D.3d 366, 367). Further, although the handwriting expert
testified that he relied on several additional exemplars,
those exemplars likewise were not authenticated (see
CPLR 4536; see also Banco Popular N. Am. v Victory Taxi
Mgt., 1 N.Y.3d at 384; Matter of Dane, 32
A.D.3d at 1234; Matter of James, 17 A.D.3d at 367).
Consequently, the testimony of the handwriting expert should
not have been considered (see CPLR 4536; see
also Banco Popular N. Am. v Victory Taxi Mgt., 1 N.Y.3d
testimony of the plaintiff and other witnesses was not
sufficient to establish, to a moral certainty, that the 2002
power of attorney was forged. The plaintiff denied having
signed the 2002 power of attorney. However, "[s]omething
more than a bald assertion of forgery is required to create
an issue of fact contesting the authenticity of a
signature" (Banco Popular N. Am. v Victory Taxi
Mgt., 1 N.Y.3d at 383-384; see TD Bank, N.A. v
Piccolo Mondo 21st Century, Inc., 98 A.D.3d 499, 500).
addition to his own testimony, the plaintiff presented, inter
alia, the testimony of a family member, Anna Kanterakis.
However, that witness did not testify as to Emily making an
express admission of forgery of the power of attorney.
Further, a proper foundation was not laid for the
introduction into evidence of a series of emails allegedly
sent by Emily to Anna Kanterakis (see Matter of Gabriel
W. [Steven C.], 130 A.D.3d 742; cf. Matter of Colby
II. [Sheba II.], 145 A.D.3d 1271), and in any case,
those emails contained no express admission of forgery.
the notary public who acknowledged the 2002 power of attorney
lacked an independent recollection of the circumstances of
that acknowledgment. The testimony of that notary's
coworker was not based on that witness's personal
knowledge of the ...