| Wells Fargo Bank, N.A. v Sherwood |
| 2011 NY Slip Op 01652 [82 AD3d 758] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Respondent, v Kelly Sherwood etal., Defendants, and Marc A. Lebowitz, Appellant. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Daniel G.Walsh of counsel), for respondent.
In an action, inter alia, to recover damages pursuant to Executive Law § 135 formisconduct by a notary public, the defendant Marc A. Lebowitz appeals from so much of anorder of the Supreme Court, Putnam County (Nicolai, J.), dated April 29, 2010, as denied hismotion for summary judgment dismissing the amended complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
In its amended complaint, the plaintiff asserted a cause of action alleging notarial misconductagainst the defendant Marc A. Lebowitz (hereinafter the defendant), a notary public, claimingthat, without requisite knowledge as to the true identity of the signator, the defendant notarized asignature on a durable power of attorney form which was subsequently presented to the plaintiff.The defendant moved for summary judgment dismissing the amended complaint insofar asasserted against him, and the Supreme Court, inter alia, denied his motion. We affirm the orderinsofar as appealed from.
Executive Law § 135 provides, in pertinent part, that "[f]or any misconduct by a notarypublic in the performance of any of his [or her] powers such notary public shall be liable to theparties injured for all damages sustained by them." Here, in moving for summary judgment, thedefendant failed to establish, prima facie, the absence of any triable issue of fact concerningwhether he committed misconduct by notarizing a forged signature on the subject durable powerof attorney form (see Plemmenou vAnninos, 12 AD3d 657, 657-658 [2004]; Maloney v Stone, 195 AD2d 1065,1068 [1993]) and, if so, whether his notarial misconduct caused injury to the plaintiff (seePlemmenou v Anninos, 12 AD3d at 658; Laing v Cantor, 1 AD3d 406, 408 [2003]; Rastelli vGassman, 231 AD2d 507, 508 [1996]; Maloney v Stone, 195 AD2d at 1068;Amodei v New York State Chiropractic Assn., 160 AD2d 279, 282 [1990]). Accordingly,the Supreme Court properly denied the defendant's motion for summary judgment dismissing theamended complaint insofar as asserted against him, without regard to the sufficiency of theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Covello, J.P., Lott, Roman and Miller, JJ., concur.