| Matter of Augustine v BankUnited FSB |
| 2010 NY Slip Op 06165 [75 AD3d 596] |
| July 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Helen Augustine,Respondent, v BankUnited FSB, Appellant. |
—[*1] Allyn J. Crawford, Staten Island, N.Y. (Kerri C. Bringslid of counsel), forrespondent.
In a proceeding, inter alia, pursuant to SCPA 2105, for a decree setting aside a deed andmortgage, BankUnited FSB appeals from an order of the Surrogate's Court, Richmond County(Gigante, S.), dated December 11, 2009, which denied its motion for summary judgmentdismissing the petition.
Ordered that the order is reversed, on the law, with costs, and the motion of BankUnited FSBfor summary judgment dismissing the petition is granted.
In March 2005 the petitioner executed certain documents, including a deed transferring herinterest in the subject real property to the decedent, who died in March 2007. In June 2007 thepetitioner commenced this proceeding, inter alia, pursuant to SCPA 2105, for a decree settingaside the deed and a mortgage upon the property which the decedent had obtained fromBankUnited FSB (hereinafter BankUnited) in December 2005. The petitioner alleged that thedecedent had fraudulently obtained the deed by misrepresenting to her that she was signing apower of attorney form when, in fact, she was conveying the property to the decedent. TheSurrogate's Court denied BankUnited's motion for summary judgment dismissing the petition.We reverse.
A party is under an obligation to read a document before signing it, and cannot generallyavoid the effect of the document on the ground that he or she did not read it or know its contents(see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner,96 NY2d 300, 304 [2001]; Cash v TitanFin. Servs., Inc., 58 AD3d 785, 788 [2009]; Romero v Khanijou, 212 AD2d769, 770 [1995]; Martino v Kaschak, 208 AD2d 698 [1994]).
Here, BankUnited established its prima facie entitlement to judgment as a matter of lawdismissing the petition by submitting excerpts from the deposition testimony of the petitionerand Orlando Marrazzo, Jr., the attorney who prepared the deed. The petitioner's depositiontestimony revealed that she could read and understand English, that she recalled signing adocument which was, in fact, the deed, and that she handled her own finances. There was noindication that the petitioner was either prevented from reading the transfer documents or forcedto sign them, or [*2]that she was suffering from any disability atthe time of the conveyance that prevented her from reading the documents prior to signing them(see Cash v Titan Fin. Servs., Inc., 58 AD3d at 788). In addition, Marrazzo testified thathe explained the purpose of the deed to the petitioner, and that he was present when she signedit.
In opposition to BankUnited's prima facie showing, the petitioner failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Therefore, theSurrogate's Court should have granted BankUnited's motion for summary judgment dismissingthe petition. Prudenti, P.J., Rivera, Santucci and Miller, JJ., concur.