Blue Danube Property LLC v. Mad52 LLC

Appellate Division of the Supreme Court of New York

Blue Danube Property LLC v. Mad52 LLC

107 A.D.3d 561, 968 N.Y.S.2d 445

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 20, 2013

StatusPublished

This text of 107 A.D.3d 561 (Blue Danube Property LLC v. Mad52 LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blue Danube Property LLC v. Mad52 LLC, 107 A.D.3d 561, 968 N.Y.S.2d 445 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered December 19, 2012, which, to the extent appealed from, granted plaintiffs motion for summary judgment cancelling a mortgage, granted third-party defendant Brown, Harris, Stevens on Site Marketing and Sales LLC’s (BHS) motion to dismiss the third-party complaint as against it, and denied defendant/third-party plaintiff Mad52 LLC’s cross motion for summary judgment dismissing BHS’s affirmative defense and on its claim against BHS, unanimously modified, on the law, to deny BHS’s motion, and otherwise affirmed, without costs.

Third-party defendant Levine conceded that she notarized the signature of plaintiffs principal, Ralf Preyer, on the collateral mortgage in his absence and with no indication from him that the signature was his. Thus, the mortgage was not a duly acknowledged instrument, and, contrary to Mad52’s contention, plaintiff was required to prove forgery only by a preponderance of the evidence, not by clear and convincing evidence (see Bryant v Bryant, 58 AD3d 496 [1st Dept 2009], affg 18 Misc 3d 1105[A], 2007 NY Slip Op 52413[U], *3 [Sur Ct, Bronx County 2007], citing Albany County Sav. Bank v McCarty, 149 NY 71 [1896]). In any event, plaintiffs documentary evidence, which includes Preyer’s passport and records from the Department of Homeland Security and U.S. Customs, established conclusively that Preyer was not in the United States when the collateral mortgage was signed. In opposition, Mad52 offered nothing more than speculation.

As to Mad52’s claim against BHS for Levine’s notarial misconduct, on a theory of respondeat superior, Levine was employed by BHS and seconded to a client of BHS. While she did not perform notarization in her work for BHS, the client encouraged her to become a notary and paid for her notary classes. Moreover, BHS knew that she had become a notary, and [562]*562on one occasion one of its executives had advised Levine, at her request, about whether to notarize a particular document. Thus, summary judgment on this claim is precluded by issues of fact such as the foreseeability of an executive assistant to the sponsor of a condominium project being called upon to notarize documents and the scope of BHS’s supervisory control as to Levine’s notarizations (see Riviello v Waldron, 47 NY2d 297, 303 [1979]). Concur — Tom, J.P., Acosta, Saxe and Freedman, JJ.

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Order, Supreme Court, New York County (Paul Wooten, J.), entered December 19, 2012, which, to the extent appealed from, granted plaintiffs motion for summary judgment cancelling a mortgage, granted third-party defendant Brown, Harris, Stevens on Site Marketing and Sales LLC’s (BHS) motion to dismiss the third-party complaint as against it, and denied defendant/third-party plaintiff Mad52 LLC’s cross motion for summary judgment dismissing BHS’s affirmative defense and on its claim against BHS, unanimously modified, on the law, to deny BHS’s motion, and otherwise affirmed, without costs.

Third-party defendant Levine conceded that she notarized the signature of plaintiffs principal, Ralf Preyer, on the collateral mortgage in his absence and with no indication from him that the signature was his. Thus, the mortgage was not a duly acknowledged instrument, and, contrary to Mad52’s contention, plaintiff was required to prove forgery only by a preponderance of the evidence, not by clear and convincing evidence (see Bryant v Bryant, 58 AD3d 496 [1st Dept 2009], affg 18 Misc 3d 1105[A], 2007 NY Slip Op 52413[U], *3 [Sur Ct, Bronx County 2007], citing Albany County Sav. Bank v McCarty, 149 NY 71 [1896]). In any event, plaintiffs documentary evidence, which includes Preyer’s passport and records from the Department of Homeland Security and U.S. Customs, established conclusively that Preyer was not in the United States when the collateral mortgage was signed. In opposition, Mad52 offered nothing more than speculation.

As to Mad52’s claim against BHS for Levine’s notarial misconduct, on a theory of respondeat superior, Levine was employed by BHS and seconded to a client of BHS. While she did not perform notarization in her work for BHS, the client encouraged her to become a notary and paid for her notary classes. Moreover, BHS knew that she had become a notary, and [562]*562on one occasion one of its executives had advised Levine, at her request, about whether to notarize a particular document. Thus, summary judgment on this claim is precluded by issues of fact such as the foreseeability of an executive assistant to the sponsor of a condominium project being called upon to notarize documents and the scope of BHS’s supervisory control as to Levine’s notarizations (see Riviello v Waldron, 47 NY2d 297, 303 [1979]). Concur — Tom, J.P., Acosta, Saxe and Freedman, JJ.

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Bluebook (online)

107 A.D.3d 561, 968 N.Y.S.2d 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blue-danube-property-llc-v-mad52-llc-nyappdiv-2013.

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