Genger v. the Arie Genger 1995 Life Ins. Trust

• Decision Date: 05 May 2011
• Citation: 84 A.D.3d 471,2011 N.Y. Slip Op. 03732,922 N.Y.S.2d 347
• Parties: Sagi GENGER, et al., Petitioners–Appellants,v.The ARIE GENGER 1995 LIFE INSURANCE TRUST, Respondent–Respondent,The New York City Department of Finance, Office of the City Register, Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 471
922 N.Y.S.2d 347
2011 N.Y. Slip Op. 03732

Sagi GENGER, et al., Petitioners–Appellants,
v.
The ARIE GENGER 1995 LIFE INSURANCE TRUST, Respondent–Respondent,The New York City Department of Finance, Office of the City Register, Respondent.

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

May 5, 2011.

[922 N.Y.S.2d 348]

McLaughlin & Stern, LLP, New York (Steven J. Hyman of counsel), for appellants.Zeichner Ellman & Krause, LLP, New York (Yoav M. Griver of counsel), for respondents.TOM, J.P., MAZZARELLI, ACOSTA, DeGRASSE, ROMÁN, JJ.

[84 A.D.3d 471] Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered October 21, 2010, which, to the extent appealed from as limited by the briefs, denied the motion of petitioners Sagi Genger and Elana Genger for summary judgment seeking to expunge an allegedly improperly recorded instrument of acknowledgment of ownership of real property from the City Register and to dismiss respondent The Arie Genger 1995 Life Insurance Trust's counterclaims for damages from fraud and unjust enrichment, granted so much of the Trust's motion for summary judgment on its counterclaim seeking a declaration that it was sole beneficial owner of the real property at issue (Properties) to the extent of declaring that the recorded instrument of acknowledgment is valid and enforceable, and notwithstanding that record ownership to the Properties is in the names of petitioners,

[922 N.Y.S.2d 349]

all beneficial right, title and interest to the Properties belongs to the Trust, not petitioners, and denied the Trust's request for sanctions, unanimously affirmed, with costs.

Petitioners failed to rebut the “presumption of due execution” raised by the instrument of acknowledgment ( John Deere Ins. Co. v. GBE/Alasia Corp., 57 A.D.3d 620, 621–622, 869 N.Y.S.2d 198 [2008] ). The notary's testimony was inconclusive, and the only other proof offered tending to show that the notarization was faulty was the testimony of interested witnesses, namely, petitioners. The alteration of the notary stamp in 2007 does not negate petitioners[84 A.D.3d 472] ' execution of the document in 2005. Because the proof was not 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 [1896]; see also Matter of Goodman, 2 A.D.2d 558, 157 N.Y.S.2d 109 [1956]; John Deere, 57 A.D.3d at 622, 869 N.Y.S.2d 198), the court properly awarded summary...