Filowick v. Long

Appellate Division of the Supreme Court of New York

Filowick v. Long

201 A.D.2d 893, 608 N.Y.S.2d 753

Appellate Division of the Supreme Court of the State of New York·Decided February 4, 1994·No. Appeal No. 1·Published·Cited by 11 cases

Opinion

Order insofar as appealed from unanimously reversed on the law without costs and judgment granted in accordance with the following Memorandum: Supreme Court erred in granting summary judgment in favor of defendants Dime Savings Bank of New York FSB and Rochester Community Savings Bank. Defendant Barbara Long signed her mother Lottie Spangenburg’s name to a deed transferring title to her mother’s residence to defendant Long. Spangenburg was unaware of that transaction and did not consent to it. Long subsequently and again without her mother’s knowledge or consent used the property to secure two mortgage loans in the amounts of $35,000 and $19,000 respectively from defendants Dime Savings Bank of New York FSB and Rochester Community Savings Bank.

Although a general power of attorney in favor of Long had been signed by Spangenburg and was in effect prior to the signing of the deed, Long did not purport to be exercising her authority under that power of attorney when she signed her mother’s name to the deed. The defendant banks were unaware of the existence of the power of attorney and clearly did not rely upon it when they extended the mortgage loans to Long. Long subsequently testified under oath that the transfer of the property was the result of a fraud she perpetrated upon her mother. Under those circumstances, we conclude that the deed to the property was void ab initio and grant judgment in favor of plaintiff accordingly. It was legally impossible, therefore, for Long to encumber the property (see, Marden v Dorthy, 160 NY 39). Defendant banks "are the victims of a criminal contrivance in which they put faith, and they must seek redress from the criminal who conceived and executed the fraud” (Marden v Dorthy, supra, at 58).

We have considered plaintiff’s remaining arguments and find them to be without merit. (Appeal from Order of Supreme [894] Court, Monroe County, Calvaruso, J. — Compel Reconveyance.) Present — Denman, P. J., Callahan, Balio, Fallon and Davis, JJ.

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Order insofar as appealed from unanimously reversed on the law without costs and judgment granted in accordance with the following Memorandum: Supreme Court erred in granting summary judgment in favor of defendants Dime Savings Bank of New York FSB and Rochester Community Savings Bank. Defendant Barbara Long signed her mother Lottie Spangenburg’s name to a deed transferring title to her mother’s residence to defendant Long. Spangenburg was unaware of that transaction and did not consent to it. Long subsequently and again without her mother’s knowledge or consent used the property to secure two mortgage loans in the amounts of $35,000 and $19,000 respectively from defendants Dime Savings Bank of New York FSB and Rochester Community Savings Bank.

Although a general power of attorney in favor of Long had been signed by Spangenburg and was in effect prior to the signing of the deed, Long did not purport to be exercising her authority under that power of attorney when she signed her mother’s name to the deed. The defendant banks were unaware of the existence of the power of attorney and clearly did not rely upon it when they extended the mortgage loans to Long. Long subsequently testified under oath that the transfer of the property was the result of a fraud she perpetrated upon her mother. Under those circumstances, we conclude that the deed to the property was void ab initio and grant judgment in favor of plaintiff accordingly. It was legally impossible, therefore, for Long to encumber the property (see, Marden v Dorthy, 160 NY 39). Defendant banks "are the victims of a criminal contrivance in which they put faith, and they must seek redress from the criminal who conceived and executed the fraud” (Marden v Dorthy, supra, at 58).

We have considered plaintiff’s remaining arguments and find them to be without merit. (Appeal from Order of Supreme [894] Court, Monroe County, Calvaruso, J. — Compel Reconveyance.) Present — Denman, P. J., Callahan, Balio, Fallon and Davis, JJ.

Filowick v. Long, 201 A.D.2d 893, 608 N.Y.S.2d 753 (N.Y. Ct. App. 1994).

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Opinion

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