First Nat. Bank of Nev. v. Williams

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: A. GAIL PRUDENTI
• Citation: First Nat. Bank of Nev. v. Williams, 904 N.Y.S.2d 707, 74 A.D.3d 740 (N.Y. App. Div. 2010)
• Decision Date: 01 June 2010
• Parties: FIRST NATIONAL BANK OF NEVADA, etc., respondent, v. Robert Keith WILLIAMS, et al., defendants, Evelyn A. Gay, also known as A. Gay Evelyn, appellant.

904 N.Y.S.2d 707

74 A.D.3d 740

FIRST NATIONAL BANK OF NEVADA, etc., respondent,

v. Robert Keith WILLIAMS, et al., defendants,Evelyn A. Gay, also known as A. Gay Evelyn, appellant.

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

June 1, 2010.

George B. Headley, Brooklyn, N.Y., for appellant.

Steven J. Baum, P.C., Buffalo, N.Y. (Michael J. Wrona of counsel), for respondent.

A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, RUTH C. BALKIN, and CHERYL E. CHAMBERS, JJ.

In an action to foreclose a mortgage, the defendant Evelyn A. Gay, also known as A. Gay Evelyn, appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated October 28, 2009, which, inter alia, granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against her and, in effect, denied, as academic, her cross motion to consolidate the instant action with an action to set aside the mortgage on the ground of fraud, entitled Evelyn v. Williams, pending in the Supreme Court, Queens County, under Index No. 28012/04.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Evelyn A. Gay, also known as A. Gay Evelyn, is denied, and the cross motion to consolidate the instant action with an action entitled Evelyn v. Williams, pending in the Supreme Court, Queens County, under Index No. 28012/04, is granted only to the extent of directing that the two actions be tried jointly.

The defendant Evelyn A. Gay, also known as A. Gay Evelyn (hereinafter the appellant), is the administratrix of the estate of Kathy Briggs, who owned certain real property (hereinafter the mortgaged property) prior to her death. In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the appellant submitted documentary evidence that a deed to the mortgaged property executed by a purported owner and mortgage debtor was void, and that the true owner of the mortgaged property was the estate of Kathy Briggs, who died on November 26, 2003. The mortgage debtor purportedly acquired the mortgaged property from Kathy Briggs pursuant to a deed dated March 22, 2004, and executed a note and mortgage on the mortgaged property that same day. The deed was purportedly executed on behalf of Kathy Briggs by Alfred St. Dic, her purported attorney-in-fact, pursuant to a durable power of attorney, which recites that it was executed on December 18, 2003. Since the power of attorney recites that it was executed by Kathy Briggs on a date subsequent to her death, there is a triable issue of fact as to the validity of the power of attorney and the deed purportedly executed pursuant to the power of attorney.

If a signature on a power of...