| Campbell v Campbell |
| 2007 NY Slip Op 07050 [43 AD3d 1264] |
| September 27, 2007 |
| Appellate Division, Third Department |
| Shelley Campbell, Respondent, v Brian Campbell et al.,Defendants, and Gerhard Pokrandt et al., Appellants. |
—[*1] Tobin & Dempf, L.L.P., Albany (Kevin A. Luibrand of counsel), for respondent.
Peters, J. Appeal from an order of the Supreme Court (Czajka, J.), entered August 2, 2006 inColumbia County, which denied the motion of defendants Gerhard Pokrandt and Jean Pokrandtfor, among other things, summary judgment dismissing the complaint against them.
Between 1987 and 1989, defendant Brian Campbell, without any involvement of plaintiff,purchased both a business and building in Albany County from defendants Gerhard Pokrandt andJean Pokrandt (hereinafter collectively referred to as defendants), for which he was required tomake monthly payments. When Campbell fell into arrears, he and defendants agreed, in March1993, to extend the payments by means of a modification, extension and spreader agreement(hereinafter the agreement). This new agreement contemplated, among other things, theexecution of a collateral security mortgage on the marital residence owned by Campbell andplaintiff. Michael Hannah, former counsel to plaintiff and later counsel to Campbell, advisedCampbell that plaintiff had to sign both the new agreement as well as the collateral securitymortgage since she was a joint owner of the marital property.
Plaintiff was working in New York City. For that reason, plaintiff and Campbell agreed[*2]to have Hannah prepare a general power of attorney(hereinafter POA). Rosemary Gullo, Hannah's secretary, testified that after Hannah created thePOA with numerous delineated powers, she faxed it to plaintiff. Plaintiff allegedly signed thePOA and returned it by mail, along with a letter thanking Gullo and Hannah for expediting theprocess. Gullo, Hannah and Campbell all testified that to their knowledge, plaintiff neitherrequested revisions or deletions on the powers given to Campbell by the POA nor did she expressany reservations about granting it. Hannah further testified that plaintiff fully understood thepurpose of the POA and that she had the option of deleting certain powers therein. At the closing,Gullo testified that she notarized the signatures on the agreement, as well as the collateralsecurity mortgage, by relying upon the POA granted to Campbell. Plaintiff contends that it wasnot until July 1999, when she and Campbell were at Hannah's office for the purpose of a privatemeeting between them to discuss the dissolution of their marriage, that she first learned of whatshe contends was a misuse of the POA to mortgage their marital residence. Requesting to see theoriginal POA, plaintiff later admitted to having brought the original and copies into the ladiesroom where she burned them.
Plaintiff commenced this action seeking to, among other things, vacate the agreement and thecollateral security mortgage. Defendants counterclaimed by alleging a default by Campbell andplaintiff on the collateral security mortgage.[FN*]With only plaintiff replying to the counterclaims, she contended that her signature on thesedocuments was fraudulent and forged. These contentions were the subject of a motion forsummary judgment that she made in 2002 prior to discovery. When the record revealed thatplaintiff's signature on these documents was acknowledged by a notary public, Supreme Court(Leaman, J.) found a triable issue of fact.
In 2006, defendants moved for summary judgment seeking a dismissal of the complaint and ajudgment of foreclosure and sale. Supreme Court (Czajka, J.) determined that the law of the casedoctrine applied but found a triable issue of fact regarding plaintiff's new contention that therewas a fraudulent alteration of the POA. Defendants appeal and we affirm.
The denial of plaintiff's motion for summary judgment, alleging a forgery, was predicatedupon Supreme Court's recognition of plaintiff's notarized signature on the disputed documents.Defendants' current motion for summary judgment is based upon the first time production of acopy of the POA, deposition transcripts of all parties, the production of all relevant agreementsand proof of a default. Since plaintiff now contends that the first page of the POA produced inconnection with this motion differs from the first page of the POA that she executed, we do notfind the second summary judgment motion precluded by the law of the case doctrine (see LaFreniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518 [1984]; see also ChemicalBank v Equity Holding Corp., 254 AD2d 56, 56 [1998]; Smith v Metropolitan Transp.Auth., 226 AD2d 168, 168 [1996], lv denied 89 NY2d 803 [1996], cert deniedsub nom. Smith v Metro-North Commuter R.R., 520 US 1186 [1997]).
Recognizing, as we must, that summary judgment must be denied if issues of credibilityremain (see Mounsey v Mounsey,40 AD3d 1293, 1295 [2007]), we find, giving plaintiff, as the nonmoving party, all favorableinferences, that triable issues of fact remain as to whether plaintiff reserved certain powers fromthe POA which was utilized by Campbell. As Hannah and Gullo were unable to testifyunequivocally that plaintiff did not eliminate any specific powers granted by the POA ascontained on the first page of that document, we agree that there is a triable issue [*3]of fact with regard to plaintiff's contention that the currentlyproduced POA has a fraudulent first page. For this reason, Supreme Court properly denieddefendants' motion (see HSBC BankUSA v Merrill, 37 AD3d 899, 900-901 [2007], lv dismissed 8 NY3d 967[2007]; see also Hoffman v Kraus, 260 AD2d 435, 436 [1999]; Vasilopoulos vRomano, 228 AD2d 669, 670 [1996]).
Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Campbell did not answer.