| HSBC Bank USA, N.A. v Decaudin |
| 2008 NY Slip Op 02556 [49 AD3d 694] |
| March 18, 2008 |
| Appellate Division, Second Department |
| HSBC Bank USA, N.A., Respondent, v Bruno Decaudin etal., Defendants, and Naida I. Velazquez, Appellant. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Jacob E.Amir of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Naida I. Velazquez appeals, as limited byher brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), datedSeptember 25, 2006, as denied her motion pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint insofar as asserted against her.
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted only where "thedocumentary evidence that forms the basis of the defense [is] such that it resolves all factualissues as a matter of law, and conclusively disposes of the plaintiff's claims" (Saxony Ice Co., Div. of Springfield Ice Co.,Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445, 446 [2006]; see Museum TradingCo. v Bantry, 281 AD2d 524, 525 [2001]). The documentary evidence submitted by thedefendant Naida I. Velazquez was sufficient to demonstrate that the subject conveyance to thedefendant Bruno Decaudin was unauthorized. The conveyance was made by one of the twoattorneys-in-fact of Velazquez's mother, in disregard of the requirement set forth in the power ofattorney that they "act together" (see Unterberg v Elder, 211 NY 499 [1914]; GeneralObligations Law § 5-1501 [3]; 1-11 Warren's Weed, New York Real Property,Attorney-in-Fact § 11.25 [5th ed]). Nonetheless, an unauthorized conveyance may beratified by the subsequent acts of the principal (see Lipman v Vebeliunas, 39 AD3d 488, 490 [2007];Alexandru v Berritt, 168 AD2d 472, 474 [1990]; Rende & Esposito [*2]Consultants v St. Augustine's R. C. Church, 131 AD2d 740,743 [1987]; Diocese of Buffalo v McCarthy, 91 AD2d 213 [1983]). Since thedocumentary evidence does not establish the absence of ratification, the motion was properlydenied.
Velazquez's remaining contentions are without merit. Spolzino, J.P., Santucci, Angiolillo andBalkin, JJ., concur.