| Beshara v Beshara |
| 2008 NY Slip Op 04635 [51 AD3d 837] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Antoinette Beshara, Appellant, v George Beshara,Respondent. |
—[*1] Bruce S. Reznick, P.C., Brooklyn, N.Y. (Thomas Torto and Jason Levine of counsel), forrespondent.
In an action, inter alia, pursuant to RPAPL article 9 for the partition and sale of certain realproperty and for a judgment declaring that the plaintiff owns an undivided one-half interest in thereal property, the plaintiff appeals, as limited by her brief, from so much of an order of theSupreme Court, Kings County (Kramer, J.), dated July 5, 2007, as denied that branch of her crossmotion which was for summary judgment.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the plaintiff's cross motion which was for summary judgment is granted, and the matteris remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaringthat the plaintiff owns an undivided one-half interest in the subject property.
The plaintiff and the defendant are siblings. Their mother Marie Beshara (hereinafter themother) owned certain real property in Brooklyn (hereinafter the subject property). By bargainand sale deed dated March 4, 1996, the mother purportedly conveyed title to the subject propertyfrom her, as sole owner, to her and the defendant, as joint tenants, with a right of survivorship.Thereafter, by quitclaim deed dated August 14, 1996, the mother purportedly conveyed her feeinterest in the subject property to the plaintiff, reserving a life estate to herself. The mother'ssignature and acknowledgment on that deed were notarized by Paul Fink, Esq.
On April 25, 2006 the mother died. Thereafter, the plaintiff commenced the instant action,inter alia, for the partition and sale of the subject property and for a judgment declaring that sheowns [*2]an undivided one-half interest therein. After issue wasjoined, the plaintiff cross-moved, among other things, for summary judgment. The SupremeCourt denied that branch of the plaintiff's cross motion which was for summary judgment. Wereverse the order insofar as appealed from.
"A certificate of acknowledgment attached to an instrument such as a deed raises apresumption of due execution, which presumption, in a case such as this, can be rebutted onlyafter being weighed against any evidence adduced to show that the subject instrument was notduly executed" (Son Fong Lum v Antonelli, 102 AD2d 258, 260-261 [1984], affd64 NY2d 1158 [1985]; see Paciello vGraffeo, 32 AD3d 461, 462 [2006]; Osborne v Zornberg, 16 AD3d 643, 644 [2005]; Elder v Elder, 2 AD3d 671, 672[2003]; Albin v First Nationwide Network Mtge. Co., 248 AD2d 417, 418 [1998]). "[A]certificate of acknowledgment should not be overthrown upon evidence of a doubtful character,such as the unsupported testimony of interested witnesses, nor upon a bare preponderance ofevidence, but only on proof so clear and convincing so as to amount to a moral certainty"(Albany County Sav. Bank v McCarty, 149 NY 71, 80 [1896]; see Paciello vGraffeo, 32 AD3d at 462; Osborne v Zornberg, 16 AD3d at 644; 1 NY Jur 2d,Acknowledgments § 30, at 258).
Here, the plaintiff made a prima facie showing of entitlement to judgment as a matter of lawby submitting, inter alia, the certificate of acknowledgment which was attached to the executedand duly notarized deed dated August 14, 1996 (see Elder v Elder, 2 AD3d at 672). Inopposition thereto, the defendant failed to rebut the presumption of that deed's validity created bythe certificate of acknowledgment (see Elder v Elder, 2 AD3d at 672; Son Fong Lumv Antonelli, 102 AD2d at 261). Accordingly, the Supreme Court should have granted thatbranch of the plaintiff's cross motion which was for summary judgment.
The defendant's remaining contentions are without merit.
Since this is, in part, an action for a declaratory judgment, the matter must be remitted to theSupreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the plaintiffowns an undivided one-half interest in the subject property (see Lanza v Wagner, 11NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US901 [1962]). Mastro, J.P., Rivera, Angiolillo and McCarthy, JJ., concur.