| Bank of N.Y. v Spadafora |
| 2012 NY Slip Op 00922 [92 AD3d 629] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Bank of New York, Appellant-Respondent, v JohnSpadafora et al., Defendants, and Lucy Spadafora,Respondent-Appellant. |
—[*1] McMahon, McCarthy & Verrelli, Bronx, N.Y. (Matthew J. McMahon of counsel), forrespondent-appellant.
In an action to foreclose a mortgage on certain real property, the plaintiff appeals from (1) adecision of the Supreme Court, Westchester County (Friedman, J.H.O.), dated February 12,2010, made after a nonjury trial, and (2) so much of a judgment of the same court dated August18, 2010, as, upon the decision, declared that a certain deed and the subject mortgage are null andvoid, and is in favor of the defendants and against it dismissing the complaint, and the defendantLucy Spadafora cross-appeals (1) from the same decision, and (2), as limited by her brief, fromso much of the same judgment as imposed an equitable lien against the subject property in favorof the plaintiff in the sum of $328,796.97.
Ordered that the appeal and cross appeal from the decision are dismissed, without costs ordisbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr.Corp., 100 AD2d 509, 509-510 [1984]); and it is further,
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, withoutcosts or disbursements.
The plaintiff commenced the instant action against, amongst others, the defendant JohnSpadafora (hereinafter John) seeking to foreclose a mortgage (hereinafter the subject mortgage)on certain real property allegedly owned by John (hereinafter the subject premises). Sometimethereafter, Lucy Spadafora (hereinafter Lucy), John's wife, was granted leave to intervene in theaction as a party defendant, claiming that her signature was forged on the deed by which sheallegedly had conveyed title to the subject premises to John (hereinafter the subject deed).
The Supreme Court conducted a nonjury trial, after which it issued a decision in which itexplained its conclusion, inter alia, that Lucy's signature on the subject deed was forged, and thattitle to the subject premises remained with her, but that the plaintiff is entitled to an equitable lienagainst the subject premises.
Thereafter, the Supreme Court entered a judgment upon the decision in which it declared thatboth the subject deed and the subject mortgage on the premises are null and void, and [*2]dismissed the complaint. The plaintiff appeals from those portionsof the judgment. The judgment also, inter alia, imposed an equitable lien against the subjectpremises in favor of the plaintiff in the sum of $328,796.97. Lucy cross-appeals from that portionof the judgment.
Contrary to the plaintiff's contention, under the circumstances, the Supreme Courtprovidently exercised its discretion in limiting the rebuttal testimony of the plaintiff'shandwriting expert (see Farrell vGelwan, 30 AD3d 563, 563-564 [2006]; American Linen Supply Co. v M.W.S. Enters., 6 AD3d 1079, 1081[2004]; Gobbelet v Hit Cycle Corp., 121 AD2d 682, 683 [1986]; cf. Simpson vBellew, 161 AD2d 693, 698 [1990]), and in refusing to allow two notaries public to testify asrebuttal witnesses (see Farrell v Gelwan, 30 AD3d at 563; see also Hageman vJacobson, 202 AD2d 160, 161 [1994]; Kaminsky v Segura, 4 Misc 3d 1019[A], 2004NY Slip Op 50963[U] [2004], affd 26 AD3d 188 [2006]).
"In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority isas broad as that of the trial court and includes the power to render the judgment it finds warrantedby the facts, bearing in mind that due regard must be given to the decision of a trial judge whowas in the position to assess the evidence and the credibility of the witnesses" (D'Argenio v Ashland Bldg., LLC, 78AD3d 758, 758 [2010]; see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; A. Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d 961,961 [2011]).
Here, the Supreme Court's determinations that the signature on the subject deed was forged,rendering it and the subject mortgage invalid (see Bryant v Bryant, 58 AD3d 496, 496 [2009]; cf. John Deere Ins. Co. v GBE/AlasiaCorp., 57 AD3d 620, 622 [2008]), and that the plaintiff is entitled to an equitable lienagainst the subject premises (see King v Pelkofski, 20 NY2d 326, 333 [1967]; FederalNatl. Mtge. Assn. v Woodbury, 254 AD2d 182 [1998]; cf. Crispino v Greenpoint Mtge.Corp., 304 AD2d 608, 609-610 [2003]), are warranted by the facts. Thus, we decline todisturb those determinations. Rivera, J.P., Eng, Lott and Sgroi, JJ., concur.