Giamundo v. McConville

Appellate Division of the Supreme Court of New York

Giamundo v. McConville

309 A.D.2d 895, 766 N.Y.S.2d 101, 2003 N.Y. App. Div. LEXIS 11074

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

DecidedOctober 27, 2003

StatusPublished

This text of 309 A.D.2d 895 (Giamundo v. McConville) 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.

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Giamundo v. McConville, 309 A.D.2d 895, 766 N.Y.S.2d 101, 2003 N.Y. App. Div. LEXIS 11074 (N.Y. Ct. App. 2003).

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Opinion

In an action for contribution, the defendant third-party plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered July 8, 2002, as, after a nonjury trial, dismissed the third-party complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The third-party plaintiff’s action for contribution hinged upon the invalidity of an assignment. It is well settled that a certificate of acknowledgment attached to a written instrument raises a presumption of due execution, and such presumption “can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed” (Lum v Antonelli, 102 AD2d 258, 260-261 [1984], affd 64 NY2d 1158 [1985]; see Republic Pension Servs. v Cononico, 278 AD2d 470, 472 [2000]). “A certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of an interested witness, but only on clear and convincing evidence” (Republic Pension Servs. v Cononico, supra at 472; see Albany County Sav. Bank v McCarty, 149 NY 71, 80 [1896]). Under the circumstances presented, the third-party plaintiff failed to present evidence sufficient to rebut the presumption of the duly executed assignment. Ritter, J.P., Florio, S. Miller and Luciano, JJ., concur.

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In an action for contribution, the defendant third-party plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered July 8, 2002, as, after a nonjury trial, dismissed the third-party complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The third-party plaintiff’s action for contribution hinged upon the invalidity of an assignment. It is well settled that a certificate of acknowledgment attached to a written instrument raises a presumption of due execution, and such presumption “can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed” (Lum v Antonelli, 102 AD2d 258, 260-261 [1984], affd 64 NY2d 1158 [1985]; see Republic Pension Servs. v Cononico, 278 AD2d 470, 472 [2000]). “A certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of an interested witness, but only on clear and convincing evidence” (Republic Pension Servs. v Cononico, supra at 472; see Albany County Sav. Bank v McCarty, 149 NY 71, 80 [1896]). Under the circumstances presented, the third-party plaintiff failed to present evidence sufficient to rebut the presumption of the duly executed assignment. Ritter, J.P., Florio, S. Miller and Luciano, JJ., concur.

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Bluebook (online)

309 A.D.2d 895, 766 N.Y.S.2d 101, 2003 N.Y. App. Div. LEXIS 11074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giamundo-v-mcconville-nyappdiv-2003.

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