| First Natl. Bank of Nev. v Williams |
| 2010 NY Slip Op 04737 [74 AD3d 740] |
| June 1, 2010 |
| Appellate Division, Second Department |
| First National Bank of Nevada, Respondent, v RobertKeith Williams et al., Defendants, and Evelyn A. Gay, Also Known as A. Gay Evelyn,Appellant. |
—[*1] Steven J. Baum, P.C., Buffalo, N.Y. (Michael J. Wrona of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Evelyn A. Gay, also known as A. GayEvelyn, appeals, as limited by her brief, from stated portions of an order of the Supreme Court,Queens County (Lane, J.), dated October 28, 2009, which, inter alia, granted the plaintiff'smotion for summary judgment on the complaint insofar as asserted against her and, in effect,denied, as academic, her cross motion to consolidate the instant action with an action to set asidethe mortgage on the ground of fraud, entitled Evelyn v Williams, pending in the SupremeCourt, Queens County, under index No. 28012/04.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, theplaintiff's motion for summary judgment on the complaint insofar as asserted against thedefendant Evelyn A. Gay, also known as A. Gay Evelyn, is denied, and the cross motion toconsolidate the instant action with an action entitled Evelyn v Williams, pending in theSupreme Court, Queens County, under index No. 28012/04, is granted only to the extent ofdirecting that the two actions be tried jointly.
The defendant Evelyn A. Gay, also known as A. Gay Evelyn (hereinafter the appellant), isthe administratrix of the estate of Kathy Briggs, who owned certain real property (hereinafter themortgaged property) prior to her death. In opposition to the plaintiff's prima facie showing ofentitlement to judgment as a matter of law, the appellant submitted documentary evidence that adeed to the mortgaged property executed by a purported owner and mortgage debtor was void,and that the true owner of the mortgaged property was the estate of Kathy Briggs, who died onNovember 26, 2003. The mortgage debtor purportedly acquired the mortgaged property fromKathy Briggs pursuant to a deed dated March 22, 2004, and executed a note and mortgage on themortgaged property that same day. The deed was purportedly executed on behalf of KathyBriggs by Alfred St. Dic, her purported attorney-in-fact, pursuant to a durable power of attorney,which recites that it was executed on December 18, 2003. Since the power of attorney recitesthat it was executed by Kathy Briggs on a date subsequent to her death, there is a triable issue offact as to the validity of the power of attorney and the deed purportedly executed pursuant to thepower of attorney.[*2]
If a signature on a power of attorney is forged, thedocument executed by the purported attorney-in-fact pursuant to the power of attorney is void(see Hoffman v Kraus, 260 AD2d 435, 436 [1999]; see generally Davis vDunnet, 239 NY 338, 339-340 [1925]). If documents purportedly conveying a propertyinterest are void, they convey nothing, and a subsequent bona fide purchaser or bona fideencumbrancer for value receives nothing (see Marden v Dorthy, 160 NY 39, 48 [1899];GMAC Mtge. Corp. v Chan, 56AD3d 521, 522 [2008]; Yin Wu v Wu, 288 AD2d 104, 105 [2001]; Kraker vRoll, 100 AD2d 424, 430-431 [1984]). "A deed based on forgery or obtained by falsepretenses is void ab initio, and a mortgage based on such a deed is likewise invalid" (Cruz v Cruz, 37 AD3d 754, 754[2007]; see Crispino v Greenpoint Mtge. Corp., 304 AD2d 608, 609 [2003]).Accordingly, the documents submitted by the appellant raised a triable issue of fact as to thevalidity of the mortgage, precluding the award of summary judgment to the plaintiff.
Further, since the issues in the instant action and the action entitled Evelyn vWilliams, pending in the Supreme Court, Queens County, under index No. 28012/04,involve common questions of law and fact relating the validity of the mortgage, the two actionsshould be consolidated to the extent that they be tried jointly (see CPLR 602 [a]).Prudenti, P.J., Angiolillo, Balkin and Chambers, JJ., concur.