Giryluk v. Giryluk
| Decision Date | 30 April 1968 |
| Parties | Annabelle GIRYLUK, Plaintiff-Respondent, v. William GIRYLUK, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Bernard J. Coven, New York City, for appellant.
Jack S. Dweck, New York City, for respondent.
Before STEVENS, J.P., and STEUER, TILZER, McGIVERN and RABIN, JJ.
In this action brought to set aside a confession of judgment in the sum of $30,000 executed by the plaintiff and her estranged husband in favor of her father-in-law, William Giryluk, the latter appeals from a judgment entered after trial at Special Term holding that the signing of the confession of judgment was not the plaintiff's voluntary act and that, accordingly, the judgment entered upon the confession must be vacated.
Underlying the trial justice's conclusion is the stated premise that courts should adopt a liberal attitude towards vacating a judgment by confession. But in exercising such liberality in assessing an attack by a judgment-debtor upon a judgment by confession, we must, nevertheless, not lose sight of the fact that such a judgment has all of the qualities, incidents and attributes of a judgment on a verdict, including a presumption as to its validity. The judgment-debtor must sustain the attack on the judgment by a preponderance of clear, positive and satisfactory evidence. This burden the plaintiff failed to meet. That there was a 'sharp conflict in the testimony' concerning the signing of the confession is not sufficient to establish plaintiff's claims that she did not understand the significance of the document and that it was executed as a result of overreaching, undue influence and violation of the trust and confidential relation which the plaintiff enjoyed with the defendant William Giryluk.
The plaintiff signed not one but two confessions or affidavits of confession of judgment on December 21, 1964. On one of these, the plaintiff's signature appears twice, the second signature being printed in accordance with the instructions in minute type appearing on the form. Both instruments bear the signature of Amelia Bellavia, plaintiff's tenant, who was summoned to act as a witness. Mrs. Bellavia was called to the plaintiff's apartment when still a third document, an acknowledgment of indebtedness signed by the plaintiff and her husband, was said to be 'not legal' because it had been witnessed by the plaintiff's two minor sons. All three instruments bear the signature of plaintiff's disaffected husband, John Giryluk. The placement of the signatures of the plaintiff, Mrs. Bellavia and John Giryluk indicate the latter was present on the evening in question, belying plaintiff's testimony that John was not in the home.
The confessions of judgment were witnessed later that evening by a neighborhood notary public who testified that the signatories appeared before him and that he appended his signature and seal to the document. The plaintiff denied that she had ever appeared before a notary, in contradiction to the testimony of that individual as well as the testimony of four others who testified to attending at the notary's office. Plaintiff denied too (consistent with her story that on the evening of December 21 she was in a hysterical condition and in no position to understand the nature of the papers presented to her) that she had ever signed another paper in favor of her father-in-law. Nevertheless, she admitted that her signature, with that of her husband's, appeared on a deed to her premises dated January 4, 1965. This instrument too was witnessed by the same notary who notarized the confessions and he testified that the same group of people appeared before him on the later date.
We are satisfied that the plaintiff was well aware of the import of her obligation. Her evidence was neither clear, positive nor satisfactory that the signing of the confession was an involuntary act on her part. The record is bare, moreover, of any breach of a trust relationship between the parties. The plaintiff's father-in-law, the appellant, is a retired tailor, 74 years of age, unable to read or write the English language. There was no evidence of compulsion, 'actual, present or potential,' to warrant the conclusion that this elderly man exerted undue influence over his plaintiff daughter-in-law. (Glicman v. Barker Painting Co., 227 App.Div....
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