Son Fong Lum v. Antonelli, 1

• Decision Date: 18 June 1984
• Docket Number: No. 1,No. 2,1,2
• Citation: 102 A.D.2d 258,476 N.Y.S.2d 921
• Parties: SON FONG LUM, Plaintiff-Respondent, v. Domenico ANTONELLI, Appellant-Respondent, The Long Island Savings Bank, et al., Respondents-Appellants (and third-party titles). (Matter) Domenico ANTONELLI, Appellant, v. Jimmy LUM, a/k/a Chung Lum, et al., Respondents. (Matter)
• Court: New York Supreme Court — Appellate Division

Page 921

476 N.Y.S.2d 921

102 A.D.2d 258

SON FONG LUM, Plaintiff-Respondent, v. Domenico ANTONELLI, Appellant-Respondent, The Long Island Savings Bank, et al., Respondents-Appellants

(and third-party titles). (Matter No. 1)

Domenico ANTONELLI, Appellant, v. Jimmy LUM, a/k/a Chung Lum, et al., Respondents. (Matter No. 2)

Supreme Court, Appellate Division Second Department.

June 18, 1984.

Dreyer & Traub, New York City (Hannah K. Flamenbaum and Samuel Kirschenbaum, New York City, of counsel), for defendant third-party plaintiff-petitioner appellant-respondent Domenico Antonelli.

Binder, Permut, Mishkin, Stangler, Strear & Boyle, Carle Place (Michael Permut, New York City, of counsel), for defendants respondents-appellants Yee Woo Lum and Po Wah Lum.

Richard T. Farrell, Brooklyn, for third-party defendant-appellant Alfonso Duarte.

Dollinger, Gonski & Grossman, Carle Place (Matthew Dollinger, Carle Place, of counsel), for defendant third-party plaintiff respondent-appellant The Long Island Sav. Bank.

Schutzman & Schutzman, Wantagh (Joseph Schutzman, Wantagh, of counsel), for plaintiff-respondent Son Fong Lum.

Before MOLLEN, P.J., and WEINSTEIN, BROWN and BOYERS, JJ.

WEINSTEIN, Justice.

By deed dated August 4, 1976 and recorded in the Office of the Register, Queens County, on August 6, 1976, plaintiff, Son Fong Lum, and her husband, Chung Lum, purportedly conveyed their interest as tenants by the entirety in the premises at 150-56 20th Road, Whitestone, to their son and daughter-in-law, defendants Yee Woo Lum and Po Wah Lum. The instrument was signed by Chung Lum, whose signature is not disputed. The deed also bears an X as the purported mark of the plaintiff. The certificates of acknowledgment of Alfonso Duarte, a notary public, are affixed to the deed.

On March 22, 1978, defendants Lum, representing themselves to be the owners of the subject property, gave a mortgage to the defendant Long Island Savings Bank. That mortgage was duly recorded on March 24, 1978.

By deed dated January 9, 1980, and recorded on January 16, 1980, defendants Lum conveyed the property to Domenico Antonelli for a purchase price of $105,000. As part of the transaction, Antonelli (1) executed a second, purchase-money mortgage to defendants Lum in the sum of $15,000, which was duly recorded on January 16, 1980, (2) executed an extension and modification agreement pursuant to which Antonelli assumed the mortgage previously executed by defendants Lum in favor of the Long Island Savings Bank, and (3) made various payments totaling $33,823.25.

Plaintiff maintains that the 1976 deed purporting to convey her interest in the subject premises to defendants Lum was a forgery inasmuch as she never signed or made an identifying X mark on the instrument. She commenced an action pursuant to article 15 of the Real Property Actions and Proceedings Law for a judgment (1) barring defendants Antonelli, the Long Island Savings Bank, Yee Woo Lum and Po Wah Lum, as well as all persons claiming under them, from any claim or interest in the subject property and (2) directing the cancellation of the aforesaid deeds and mortgages.

Meanwhile, Antonelli had commenced a holdover summary proceeding in the Civil Court of the City of New York, Queens County, against plaintiff and Chung Lum. By order of the Supreme Court, Queens County (SANTUCCI, J.), that proceeding was removed from the Civil to the Supreme Court for joint trial with plaintiff's action.

Plaintiff did not assert a cause of action against the notary in her complaint. Duarte was brought into the action as a third-party defendant by Antonelli and the Long Island Savings Bank. The parties asserted various counterclaims and cross claims against each other. The matters proceeded to trial in April, 1981 before Justice HOWARD E. LEVITT.

The trial court, without specifically finding that plaintiff's purported mark upon the deed had been a forgery, found that the deed to defendants Lum had not been acknowledged in the manner required by law. The notary merely assumed that the parties were who he thought they were without conducting any further inquiry. The court found that Duarte's certification of plaintiff's "signature" was false, whether or not such signature was forged, and that this failure to obtain a proper acknowledgment constituted misconduct under section 135 of the Executive Law, thus entitling plaintiff to judgment in her favor. Aside from the forgery issue, the trial court concluded that even if plaintiff had affixed her mark to the deed, the deed was invalid inasmuch as she clearly had no intention of conveying the property and since her ability to speak and understand English had never been established.

We disagree and find no basis for nullifying the respective deeds and mortgages. Inasmuch as the underlying deed from plaintiff and her husband is valid, none of the parties is liable in damages to the others.

A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution, which presumption, in a case such as this, can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed (see Uvalde Asphalt Paving Co. v. City of New York, 99 A.D. 327, 90 N.Y.S. 131). The rule as expounded by the Court of Appeals is that "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 as to amount to a moral certainty" (Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 80, 43 N.E. 427).

Plaintiff failed to come forward with proof of the nature required to rebut the presumption of due execution arising from the notary's certificate of acknowledgment. Plaintiff's case rested upon her own testimony that the X mark on the deed was not hers and upon several documents bearing her authentic signature. Plaintiff's testimony established that she first learned to write her name in English in 1968 and that, since 1969, she has not signed anything with an X mark. Plaintiff furthermore claimed that she had been at work on the day of the closing.

The proof offered by plaintiff is not sufficient to overcome the presumption of the validity of Duarte's acknowledgment. A total of five witnesses--Duarte, plaintiff's son, daughter-in-law and two grandsons--contradicted plaintiff's testimony that she was not present when the deed was signed. Furthermore, Duarte and defendants Lum testified that they personally...