Rivera v. Hernandez

277 A.D.2d 301, 715 N.Y.S.2d 749, 2000 N.Y. App. Div. LEXIS 11780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—In an action, inter alia, for the partition of real property and an accounting, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Cutrona, J.), dated April 3, 2000, which, after a nonjury trial, is in favor of the defendant and against him, and determined that the subject property was owned by the defendant.

Ordered that the plaintiff’s notice of appeal from the findings of fact and conclusions of law of the same court, dated June 30, 1999, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]); and it is further,

Ordered that the judgment is affirmed, without costs and disbursements.

The plaintiff and the defendant jointly owned the subject property. The plaintiff claimed that his acknowledged signature on a deed transferring ownership of the property to the defendant alone was forged. However, the plaintiff failed to provide proof of forgery “so clear and convincing as to amount to a moral certainty” (Albany County Sav. Bank v McCarty, 149 NY 71, 80; see, Son Fong Lum v Antonelli, 102 AD2d 258, 261, affd 64 NY2d 1158; see also, CPLR 4538). Therefore, the Supreme Court properly determined that the property was owned by the defendant. Bracken, J. P., Santucci, Thompson and Sullivan, JJ., concur.