| Yabkow v Yabkow |
| 2011 NY Slip Op 08353 [89 AD3d 932] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Joyce Yabkow, Respondent, v Milton Yabkow et al.,Defendants, and Bank of America, N.A., Appellant. |
—[*1] Schoeps & Specht, Nanuet, N.Y. (Michael B. Specht of counsel), for respondent.
In an action, inter alia, to recover damages for the negligent issuance of a loan, the defendant Bankof America, N.A., appeals from an order of the Supreme Court, Rockland County (Berliner, J.),entered August 20, 2010, which denied its motion for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Bank ofAmerica, N.A., for summary judgment dismissing the complaint insofar as asserted against it is granted.
On October 17, 2000, the plaintiff executed a durable general power of attorney appointing hernow former husband Milton Yabkow (hereinafter Yabkow) as her attorney-in-fact. The power ofattorney expressly provided that a third party was entitled to rely on the document until that party hadactual notice or knowledge of the revocation. Thereafter, unbeknownst to the plaintiff, Yabkow appliedto the defendant Bank of America, N.A. (hereinafter the defendant Bank), for a home equity line ofcredit to be secured by a mortgage on marital property. His application was approved and, on April13, 2006, he obtained a home equity credit line in the sum of $192,700. Approximately two years later,Yabkow left the plaintiff and allegedly took a portion of the loan money.
In a verified complaint filed on December 16, 2008, the plaintiff alleged that she had not beenpresent at the closing and that she had not known of the home equity line of credit. She asserted thatthe defendant Bank "was negligent and failed to exercise due care in permitting Milton Yabkow to closeon the Home Equity Loan in the absence of plaintiff and without plaintiff's authorization." The SupremeCourt denied the defendant Bank's motion for summary judgment dismissing the complaint insofar asasserted against it. We reverse.
The defendant Bank demonstrated, prima facie, that in granting Yabkow the loan, it relied on avalid durable power of attorney signed by the plaintiff which had never been revoked (see Parr vReiner, 143 AD2d 427 [1988]). In opposition to the defendant Bank's prima facie showing, the[*2]plaintiff failed to raise a triable issue of fact (see Zuckerman vCity of New York, 49 NY2d 557, 563 [1980]).
Accordingly, the Supreme Court should have granted the defendant Bank's motion for summaryjudgment. Angiolillo, J.P., Leventhal, Austin and Roman, JJ., concur.