| Moffett v Gerardi |
| 2010 NY Slip Op 05990 [75 AD3d 496] |
| July 6, 2010 |
| Appellate Division, Second Department |
| George Moffett, Appellant, v James J. Gerardi, II,Respondent. |
—[*1] Van Nostrand & Martin, Amityville, N.Y. (David S. Desmond of counsel), forrespondent.
In an action, inter alia, to set aside an allegedly fraudulent deed, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley,Jr., J.), entered July 9, 2009, as, upon reargument, in effect, vacated its prior determination in anorder of the same court dated November 12, 2008, denying the defendant's motion for summaryjudgment dismissing the complaint, and thereupon granted the motion for summary judgment.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, uponreargument, the determination in the order dated November 12, 2008, denying the defendant'smotion for summary judgment dismissing the complaint is adhered to.
By deed dated November 20, 1996, the plaintiff and his brother-in-law, the defendant,purchased real property located in Rocky Point, New York. Pursuant to a subsequent deed datedJanuary 16, 1998, recorded in the office of the Suffolk County Clerk, the plaintiff's entire interestin the subject property was transferred to the defendant. The plaintiff contends that this transferwas fraudulent and that his signature on the January 1998 deed was forged.
The defendant moved for summary judgment dismissing the complaint on the grounds thatthe plaintiff's action was time-barred, and that there was a presumption of due execution basedon the deed's certificate of acknowledgment. The Supreme Court denied the motion on theground that the plaintiff's claims were not time-barred, without addressing the defendant's secondargument. The defendant then moved for leave to reargue that order. The Supreme Court grantedleave to reargue and, upon reargument, awarded summary judgment to the defendant dismissingthe complaint. The plaintiff appeals. We reverse 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 Beshara[*2]v Beshara, 51 AD3d 837, 838 [2008]). Here, thedefendant made a prima facie showing of entitlement to judgment as a matter of law byproviding a copy of the notarized January 1998 deed which included a certificate ofacknowledgment (see Beshara vBeshara, 51 AD3d 837 [2008]; Elder v Elder, 2 AD3d 671 [2003]).
In opposition, the plaintiff submitted his own affidavit contesting the signature on the deed,the deposition transcript of the notary public who purportedly notarized the deed, and anunsworn report of a handwriting expert. The plaintiff failed to establish that he had sent thedeposition transcript to the notary public for review pursuant to CPLR 3116 (a), therebyrendering the transcript inadmissible at trial (see Marmer v IF USA Express, Inc., 73 AD3d 868 [2010]; Martinez v 123-16 Liberty Ave. RealtyCorp., 47 AD3d 901, 902 [2008]; McDonald v Mauss, 38 AD3d 727, 728 [2007]; Pina v Flik Intl. Corp., 25 AD3d772 [2006]; Scotto v Marra, 23AD3d 543 [2005]; Santos v IntownAssoc., 17 AD3d 564 [2005]). However, this failure did not preclude the SupremeCourt from considering the transcript in opposition to the motion for summary judgment (seeFriends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Phillips vKantor & Co., 31 NY2d 307 [1972]; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d 846 [2008];Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]; Silvestri v Iannone,261 AD2d 387 [1999]; Zuilkowski v Sentry Ins., 114 AD2d 453 [1985]). Generally,when opposing a motion for summary judgment, a party must submit evidence in admissibleform sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49NY2d 557 [1980]). In certain circumstances, "proof which might be inadmissible at trial may,nevertheless, be considered in opposition to a motion for summary judgment" (Zuilkowski vSentry Ins., 114 AD2d 453, 454 [1985]), as long as the party seeking to use such evidenceprovides an acceptable excuse for the failure to tender the evidence in admissible form (seeFriends of Animals v Associated Fur Mfrs., 46 NY2d at 1068; Allstate Ins. Co. vKeil, 268 AD2d 545 [2000]), and the inadmissible evidence does not provide the sole basisfor the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d 307 [1972]).
Here, the plaintiff's excuse that it was his understanding that the defendant, as the party whohad noticed the deposition and hired the court reporter, was forwarding a copy of the depositiontranscript to the notary public for review, was reasonable. Moreover, the notary public'sdeposition testimony that the deed was not notarized in the usual manner in which he notarizeddocuments and, as a result, that he would not testify that the signature on the deed belonged tothe plaintiff, along with the plaintiff's own affidavit that he did not sign the subject deed, rebuttedthe presumption of the deed's validity as created by the certificate of acknowledgment (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]; Hoffman v Kraus, 260 AD2d 435[1999]). Accordingly, since there is a triable issue of fact, the Supreme Court, upon reargument,should have adhered to its prior determination denying the defendant's motion for summaryjudgment dismissing the complaint.
In light of our determination, we need not reach the appellant's remaining contention. Fisher,J.P., Lott, Austin and Sgroi, JJ., concur.