Clark v. Mortgage Serv. Unlimited

• Decision Date: 30 November 2010
• Citation: 78 A.D.3d 1104,912 N.Y.S.2d 269
• Parties: Diane Kamen CLARK, appellant, v. MORTGAGE SERVICES UNLIMITED, et al., defendants, Washington Mutual Bank, F.A., respondent.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 269

78 A.D.3d 1104

Diane Kamen CLARK, appellant,

v. MORTGAGE SERVICES UNLIMITED, et al., defendants,Washington Mutual Bank, F.A., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 30, 2010.

John F. Clennan, Ronkonkoma, N.Y., for appellant.

Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, N.Y. (Janice L. Snead of counsel), for respondent.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to set aside two deeds to real property, the plaintiff appealsfrom an order of the Supreme Court, Suffolk County (Seidell, J.H.O.), dated August 21, 2009, which, after a nonjury trial, directed dismissal of the seventh cause of action insofar as asserted against the defendant Washington Mutual Bank, F.A.

ORDERED that on the Court's own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed, with costs.

The plaintiff claimed that her acknowledged signatures on two deeds dated January 23, 2002, and November 23, 2004, respectively, each transferring property, were forged, and that therefore the mortgage lien on the property held by the defendant Washington Mutual Bank, F.A. (hereinafter Washington Mutual) was invalid. " '[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' " ( John Deere Ins. Co. v. GBE/Alasia Corp., 57 A.D.3d 620, 622, 869 N.Y.S.2d 198, quoting Beshara v. Beshara, 51 A.D.3d 837, 838, 858 N.Y.S.2d 351; Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 80, 43 N.E. 427; see Paciello v. Graffeo, 32 A.D.3d 461, 462, 819 N.Y.S.2d 480; Osborne v. Zornberg, 16 A.D.3d 643, 644, 792 N.Y.S.2d 183). Here, the plaintiff's testimony was insufficient to show proof of forgery, or to rebut the presumption of due execution on either deed ( see John Deere Ins. Co. v. GBE/Alasia Corp., 57 A.D.3d at 621, 869 N.Y.S.2d 198; Beshara v. Beshara, 51 A.D.3d at 839, 858 N.Y.S.2d 351; Rivera v. Hernandez, 277 A.D.2d 301, 715 N.Y.S.2d 749; Paciello v. Graffeo, 32 A.D.3d 461, 819 N.Y.S.2d 480; compare Matter of Travers v. Brown, 72 A.D.3d 979, 899 N.Y.S.2d 628; Bryant v. Bryant, 58 A.D.3d 496, 870 N.Y.S.2d 352; see generally Albany County Sav. Bank v. McCarty, 149 N.Y. at 80, 43 N.E. 427). Moreover, the plaintiff submitted no evidence, such...