Tok Hwai Koo v. Robert Koo Wine & Liquor, Inc.

Appellate Division of the Supreme Court of New York

Tok Hwai Koo v. Robert Koo Wine & Liquor, Inc.

203 A.D.2d 180, 611 N.Y.S.2d 4

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

DecidedApril 26, 1994

StatusPublished

This text of 203 A.D.2d 180 (Tok Hwai Koo v. Robert Koo Wine & Liquor, Inc.) 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

Tok Hwai Koo v. Robert Koo Wine & Liquor, Inc., 203 A.D.2d 180, 611 N.Y.S.2d 4 (N.Y. Ct. App. 1994).

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Opinion

—Judgment, Supreme Court, New York County (Bruce Wright, J.), entered April 19, 1993, upon a verdict in favor of plaintiff and against [181]*181defendants, inter alia, setting aside the deed dated May 10, 1983, purporting to transfer the subject property from plaintiff to defendant Robert Koo Wine & Liquor, Inc., unanimously affirmed, with costs. Appeal from the order, same court and Justice, entered on or about April 23, 1993, denying defendant’s motion to set aside the jury verdict, unanimously dismissed as subsumed within the appeal from the judgment, without costs.

Given that defendant Koo admittedly signed plaintiff’s name to the deed, plaintiff’s claim that Koo did so without plaintiff’s authority cast the burden of proof on defendants, who sought to sustain the validity of the deed, to rebut plaintiff’s claim of fraud in the factum by a preponderance of the evidence (see, Fleming v Ponziani, 24 NY2d 105, 110-113; Mix v Neff, 99 AD2d 180, 182), as the trial court correctly charged. Defendants waived any right they had to open first by failing to object or even request that they be permitted to do so pending the court’s decision as to which side had the burden of proof, and indeed affirmatively agreeing with the court that such decision could be postponed until the close of evidence. We have considered defendants’ remaining claims and find them to be without merit. Concur — Murphy, P. J., Sullivan, Carro, Wallach and Asch, JJ.

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—Judgment, Supreme Court, New York County (Bruce Wright, J.), entered April 19, 1993, upon a verdict in favor of plaintiff and against [181]*181defendants, inter alia, setting aside the deed dated May 10, 1983, purporting to transfer the subject property from plaintiff to defendant Robert Koo Wine & Liquor, Inc., unanimously affirmed, with costs. Appeal from the order, same court and Justice, entered on or about April 23, 1993, denying defendant’s motion to set aside the jury verdict, unanimously dismissed as subsumed within the appeal from the judgment, without costs.

Given that defendant Koo admittedly signed plaintiff’s name to the deed, plaintiff’s claim that Koo did so without plaintiff’s authority cast the burden of proof on defendants, who sought to sustain the validity of the deed, to rebut plaintiff’s claim of fraud in the factum by a preponderance of the evidence (see, Fleming v Ponziani, 24 NY2d 105, 110-113; Mix v Neff, 99 AD2d 180, 182), as the trial court correctly charged. Defendants waived any right they had to open first by failing to object or even request that they be permitted to do so pending the court’s decision as to which side had the burden of proof, and indeed affirmatively agreeing with the court that such decision could be postponed until the close of evidence. We have considered defendants’ remaining claims and find them to be without merit. Concur — Murphy, P. J., Sullivan, Carro, Wallach and Asch, JJ.

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Bluebook (online)

203 A.D.2d 180, 611 N.Y.S.2d 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tok-hwai-koo-v-robert-koo-wine-liquor-inc-nyappdiv-1994.

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