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Perspectives

Court Grants Summary Judgment Dismissing Claim of Forgery Without Need for Discovery

            A lender, which had relied upon a notarized and duly recorded deed, was sued by an individual who claimed that she was the owner and that deed conveying the property, bearing her signature, was a forgery. The lender argued that to raise a genuine issue contesting the authenticity of a signature, something beyond an allegation of forgery is required. The lender cited a New York rule of evidence providing that the “certification of the acknowledgment or proof of a writing, except a will, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so.”   The court without requiring discovery held that to overcome this presumption of due execution, plaintiff was required to respond with “evidence adduced to show that the subject instrument was not duly executed.” Moreover, the presumption of due execution cannot be “overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of the evidence, but only upon proof so clear and convincing as to amount to a moral certainty.”  The lender argued that plaintiff’s affidavit on its own was insufficient to rebut the validity of her signature.  In addition, plaintiff’s signature on another document was sworn to before the same notary and on the exact same day as the deed.  Accordingly, the court granted the lender’s motion to dismiss the action, as a matter of law, because the plaintiff had failed to rebut the presumption of due execution.  Alleyne v. Rutland Development Group Inc., Index No.  505513/2019 (Sup. Ct. Kings Co. Oct. 16, 2019). Ganfer Shore Leeds & Zauderer LLP represented the successful defendant lender in this case.

Because many fraud cases now include allegations of forgery, it is critical to review not only the information available regarding the property, but also what other information may be available concerning the alleged signatories because the transaction may not actually involve any forgery or lack of authorization, but may be a business deal that has not gone the way all had hoped, and defensible from a title perspective.