Gervasio v. Di Napoli

• Decision Date: 02 November 1987
• Citation: 134 A.D.2d 235,520 N.Y.S.2d 430
• Parties: Genevieve GERVASIO, Appellant, v. Joseph DI NAPOLI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 430

520 N.Y.S.2d 430

134 A.D.2d 235

Genevieve GERVASIO, Appellant, v. Joseph DI NAPOLI, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 2, 1987.

Wekstein & Fulfree, Yonkers (Richard W. Fulfree, of counsel), for appellant.

Robert L. Ellis, New York City, for respondent.

Before BROWN, J.P., and RUBIN, KOOPER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to set aside a deed to the defendant of certain real property upon the ground of fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered October 30, 1986, which granted the defendant's motion for summary judgment.

ORDERED, that the order is affirmed, with costs.

By notice of motion dated June 20, 1986, the defendant moved for summary judgment dismissing the plaintiff's complaint, which sought, inter alia, to set aside a deed by which the plaintiff conveyed to the defendant certain residential premises in Westchester County. In opposition to the defendant's motion, the plaintiff annexed her affidavit in which she alleged that her execution of the deed in question had been procured by the fraud of the defendant. Specifically, the plaintiff contends on appeal that during the closing of title on the subject premises, at which she was represented by counsel, a deed was "slipped in amongst" certain other papers--by whom it is not alleged--and that the plaintiff thereafter unknowingly executed the document. Significantly, neither the plaintiff's complaint nor her affidavit in opposition to the defendant's motion alleges that defendant or anyone present at the closing in any sense misrepresented the identity of the deed which the plaintiff executed. Moreover, it is conceded by the parties that the defendant supplied the $6,000 down payment on the premises.

The Supreme Court granted the defendant's motion for summary judgment concluding, inter alia, that the plaintiff's opposition papers were wholly conclusory and insufficient to create a genuine issue of fact. We agree.

It is well settled that on a motion for summary judgment, the court's function is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387, rearg. denied 3 N.Y.2d 941). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" (Assing v. United Rubber Supply Co, 126 A.D.2d 590, 511 N.Y.S.2d 31; Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105, affd. 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282). Further, "[i]f the issue claimed to exist is not genuine, but feigned and therefore, there is nothing to be resolved at trial, 'the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.' " (Assing v....