| US Bank N.A. v Gestetner |
| 2010 NY Slip Op 04907 [74 AD3d 1538] |
| June 10, 2010 |
| Appellate Division, Third Department |
| US Bank National Association, as Trustee for Credit Suisse FirstBoston MBS 2004-4, Respondent, v Sandor Gestetner et al., Defendants. Erminia R.Sklar, Proposed Intervenor-Appellant. |
—[*1] Hogan & Hartson, L.L.P., New York City (Jessica L. Ellsworth of Hogan & Hartson, L.L.P.,Washington, D.C., of counsel, admitted pro hac vice), for respondent.
Garry, J. Appeal from an order of the Supreme Court (Sackett, J.), entered April 7, 2009 inSullivan County, which, among other things, denied Erminia R. Sklar's motion to intervene.
In 2007, plaintiff commenced this action to foreclose a mortgage on property located in theTown of Tusten, Sullivan County executed by defendant Sandor Gestetner on February 24, 2004,recorded in the office of the Sullivan County Clerk on March 1, 2004, and later assigned toplaintiff. Defendant Steven D. Sklar (hereinafter defendant), who was named as the sole recordowner of the property, interposed a pro se answer; Gestetner defaulted. Plaintiff moved for,among other things, summary judgment dismissing defendant's answer. Defendant's wife,proposed intervenor Erminia R. Sklar (hereinafter Sklar), opposed plaintiff's motion andsubsequently moved to intervene in the action as of right (see CPLR 1012) or bypermission (see [*2]CPLR 1013), alleging that she is aco-owner of the mortgaged property. Supreme Court granted plaintiff's motion and deniedSklar's motion, finding that she had no ownership interest. Sklar appeals.
Gestetner allegedly acquired the property on February 24, 2004 pursuant to a deed executedby defendant under disputed circumstances. Gestetner subsequently reconveyed partial sharesback to defendant in several transactions and, ultimately, in 2006, conveyed his remaininginterest to defendant. Plaintiff contends that defendant is the property's sole record owner. Sklaralleges that she and defendant co-owned the property before the 2004 conveyance,[FN1]that she did not know about, participate in, or authorize the 2004 conveyance, the mortgage, orany of defendant's subsequent transactions with Gestetner, and that she would not haveauthorized them had she known. Sklar allegedly only recently discovered that, in 2004, hersignature was forged on a power of attorney that purported to authorize defendant to engage inreal estate and banking transactions on her behalf. She obtained a copy of this document from therecords of the Sullivan County Clerk and allegedly determined that the notary public whoacknowledged her purported signature, and is unknown to her, resides near Gestetner in Monsey,Rockland County. Sklar alleges that neither she nor defendant had seen the power of attorney atany time before its recent discovery, and that defendant made the 2004 conveyance in themistaken belief that he had the right to sign her name to legal documents.
Supreme Court found that these claims, supported by a copy of the allegedly forged power ofattorney, were conclusory, unsubstantiated, and insufficient to support Sklar's request tointervene. We disagree. Several irregularities sufficient to "put a reasonable person on notice thatsomething was amiss" (Neildan Constr. Corp. v Angona, 209 AD2d 389, 390 [1994]) areapparent on the face of the document, a statutory short form durable power of attorney(see General Obligations Law former § 5-1501 [1]). In spite of language warningin bold print and capital letters that no authority will be granted if the spaces beside the powersare not initialed, the granted powers are merely checked off and bear no initials. The "Affidavitthat Power of Attorney is in Full Force" is completely blank. Sklar's purported signature isundated.[FN2]The file stamp and recording data indicate that it was recorded contemporaneously with the noteand mortgage on May 1, 2004, a week after the deed and mortgage were executed, underminingplaintiff's assertion that the mortgage was issued in reliance upon the recorded power of attorney.Moreover, this Court's informal comparison of Sklar's purported signature on the power ofattorney to her signature as it appears on affidavits in the record reveals discrepancies thatwarrant further investigation (see Eggleson v Trustees of Gen. Elec. Pension Trust, 238AD2d 871, 871-872 [1997]).
Further, plaintiff failed to submit sufficient support for its claim that the 2004 conveyanceterminated Sklar's interest in the subject property. The 2004 deed by which defendant allegedlyconveyed the property to Gestetner is inexplicably absent from the record.[FN3][*3]Plaintiff's descriptions of the 2004 deed are inconsistent,variously indicating that Sklar's name appears nowhere on the document (in which case it isdifficult to understand how it could have been effective to convey her interest to Gestetner), thatit was executed by defendant and Sklar, and that defendant executed the deed on behalf ofhimself and Sklar. Counsel made these various assertions without claiming to have inspected thedeed or stating any other basis for knowledge of its contents. Sklar's sworn statements that shedid not sign or authorize the conveyance to Gestetner, that the power of attorney was forged, andthat she continues to be a co-owner of the property thus stand wholly uncontradicted bystatements made by a party with personal knowledge or any other admissible evidence (seeCrispino v Greenpoint Mtge. Corp., 304 AD2d 608, 609 [2003]).
We find that Sklar has established, without contradiction in the record, that she may have anownership interest in a property currently subject to foreclosure proceedings under a deed andmortgage that may be invalid. She has "made a sufficient showing of a real and substantialinterest in the outcome of the foreclosure action warranting her intervention" (GreenpointSav. Bank v McMann Enters., 214 AD2d 647, 648 [1995]). As a person who "may beaffected adversely by the judgment" in this action involving title to property, Sklar is entitled tointervene as of right (see CPLR 1012 [a] [3]).[FN4]Plaintiff's contention that other avenues for legal relief may also be available is irrelevant.Further, Sklar should have been permitted to intervene as a matter of discretion (seeCPLR 1013). The validity of the mortgage is central to plaintiff's foreclosure action, and Sklar'sallegations raise triable issues of fact in this respect (see Campbell v Campbell, 43 AD3d 1264, 1266 [2007];Hoffman v Kraus, 260 AD2d 435, 436-437 [1999]; see also Greenpoint Bank vParissi, 256 AD2d 548, 549 [1998]). The motion to intervene should have been granted, andplaintiff's motion for summary judgment denied as premature (see Mercaldo v Navarro, 50 AD3d980, 981 [2008]; Capital Resources Co. v Prewitt, 266 AD2d 176, 176-177 [1999];Harrison v Bain Estates, 2 Misc 2d 52, 53-55 [1956], affd 2 AD2d 670 [1956]).Finally, plaintiff's claim that the motion to intervene was untimely was not raised in SupremeCourt and is unpreserved.
Spain, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law and the facts, with costs to Erminia R. Sklar, by reversing so much thereof as grantedplaintiff's motion for summary judgment and as denied Erminia R. Sklar's motion to intervene;motion to intervene granted, motion for summary [*4]judgmentdenied; and, as so modified, affirmed.
Footnote 1: She alleges that they acquiredthe property in 1997 as tenants by the entirety.
Footnote 2: The notary public'sacknowledgment of the purported signature bears a partly legible date in January 2004.
Footnote 3: Plaintiff submitted a deed toSupreme Court to ostensibly demonstrate that the property was conveyed to Gestetner; however,this document, dated in August 2005, appears to be merely one of the instruments by whichdefendant and Gestetner reapportioned their ownership interests. The only other deed in therecord is the 2006 instrument by which Gestetner transferred his remaining interest to defendant.
Footnote 4: Contrary to plaintiff's argument,intervention as of right is not discretionary; CPLR 1012 provides that a nonparty who meets thestatutory requirements "shall" be permitted to intervene. Further, if Sklar is indeed a co-owner ofthe property, she is a necessary party (see RPAPL 1311 [1]).