Gonzalez v. Dumpson

Appellate Division of the Supreme Court of New York

Gonzalez v. Dumpson

46 A.D.2d 861, 361 N.Y.S.2d 666, 16 U.C.C. Rep. Serv. (West) 433, 1974 N.Y. App. Div. LEXIS 6051

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

DecidedDecember 5, 1974

StatusPublished

Cited by6 cases

This text of 46 A.D.2d 861 (Gonzalez v. Dumpson) 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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Gonzalez v. Dumpson, 46 A.D.2d 861, 361 N.Y.S.2d 666, 16 U.C.C. Rep. Serv. (West) 433, 1974 N.Y. App. Div. LEXIS 6051 (N.Y. Ct. App. 1974).

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Opinion

Determination of State Commissioner of Social Services dated January 30, 1974, rendered after a hearing, affirming a determination of the New York City Department of Social Services which reduced certain installment payments of petitioner’s public assistance grant in order to recover a $145.50 overpayment, unanimously confirmed, without costs or disbursements. Generally, where an issue is raised concerning the genuineness of an indorsement, a finding with respect thereto should be based upon “testimony as to the execution of the indorsement either from someone who witnessed the indorsement or from a qualified expert (Boyd v. Wyman, 39 A D 2d 874; Matter of Dias v. Wyman, 41 A D 2d 722)” t(Matter of Garcia v. Lamine, 41 A D 2d 817, 818). Such evidence was not introduced herein, the agency instead, submitting a written statement by a representative of its reconciliation section who stated that in his opinion the signatures on the request for replacement and on the original check were made by the same person. However, despite that failure, the record contains substantial additional evidence supporting the finding that the check issued to petitioner and claimed to have been lost, was actually indorsed and cashed by her. The replacement check, concededly indorsed and cashed by petitioner, and the original check, bearing her alleged signature, were both introduced into evidence. Unlike the cases relied upon, the petitioner herein did not deny signing the original cheek or recovering its proceeds. Accordingly, the issue of the genuiness of the signature was never raised as a defense and the presumption that the signature was genuine was not rebutted (Uniform Commerical Code; §3-307). Additionally, this being a civil proceeding, the hearing officer could properly have drawn an unfavorable inference against petitioner, based upon her refusal on constitutional grounds, to respond to the hearing officer’s inquiry as to whether her signature appeared on the back of the cheek (Láveme v. Incorporated Vil. of Laurel Hollow, 18 N Y 2d 635; Levine v. Bornstein, 13 Mise 2d 161, affd. 7 A D 2d 995; Bradley v. O’Hare, 2 A D 2d 436). Concur — MeGivérn, P. J., Markewich, Steuer, Tilzer and Capozzoli, JJ.

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Determination of State Commissioner of Social Services dated January 30, 1974, rendered after a hearing, affirming a determination of the New York City Department of Social Services which reduced certain installment payments of petitioner’s public assistance grant in order to recover a $145.50 overpayment, unanimously confirmed, without costs or disbursements. Generally, where an issue is raised concerning the genuineness of an indorsement, a finding with respect thereto should be based upon “testimony as to the execution of the indorsement either from someone who witnessed the indorsement or from a qualified expert (Boyd v. Wyman, 39 A D 2d 874; Matter of Dias v. Wyman, 41 A D 2d 722)” t(Matter of Garcia v. Lamine, 41 A D 2d 817, 818). Such evidence was not introduced herein, the agency instead, submitting a written statement by a representative of its reconciliation section who stated that in his opinion the signatures on the request for replacement and on the original check were made by the same person. However, despite that failure, the record contains substantial additional evidence supporting the finding that the check issued to petitioner and claimed to have been lost, was actually indorsed and cashed by her. The replacement check, concededly indorsed and cashed by petitioner, and the original check, bearing her alleged signature, were both introduced into evidence. Unlike the cases relied upon, the petitioner herein did not deny signing the original cheek or recovering its proceeds. Accordingly, the issue of the genuiness of the signature was never raised as a defense and the presumption that the signature was genuine was not rebutted (Uniform Commerical Code; §3-307). Additionally, this being a civil proceeding, the hearing officer could properly have drawn an unfavorable inference against petitioner, based upon her refusal on constitutional grounds, to respond to the hearing officer’s inquiry as to whether her signature appeared on the back of the cheek (Láveme v. Incorporated Vil. of Laurel Hollow, 18 N Y 2d 635; Levine v. Bornstein, 13 Mise 2d 161, affd. 7 A D 2d 995; Bradley v. O’Hare, 2 A D 2d 436). Concur — MeGivérn, P. J., Markewich, Steuer, Tilzer and Capozzoli, JJ.

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46 A.D.2d 861, 361 N.Y.S.2d 666, 16 U.C.C. Rep. Serv. (West) 433, 1974 N.Y. App. Div. LEXIS 6051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-dumpson-nyappdiv-1974.

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