GMAC Commercial Credit L. L. C. v. Mitchell-B.J. Ltd.

May 2, 2000
Versions:272 A.D.2d 51
707 N.Y.S.2d 315
2000 N.Y. App. Div. LEXIS 4904

—Order, Supreme Court, New York County (Barry Cozier, J.), entered January 13, 1999, which, to the extent appealed and cross-appealed from, denied the motion of plaintiff BNY Financial Corporation (BNY) for partial summary judgment on the' issue of liability against defendant notary, Helen Winje, and her employer, defendant, North Fork Bank, as successor by merger to Extebank (North Fork), and denied North Fork’s cross motion to strike the note of issue and to vacate the court’s prior order precluding North Fork from introducing at trial testimony by an expert on banking custom and practice, unanimously affirmed, without costs.

The record does not support BNY’s contention that it has made a prima facie showing that Henriette Shidlofsky’s signature on the guaranty was a forgery, particularly where BNY continues to maintain its action against her on the guaranty. Moreover, there are issues of fact as to whether the notary was acting within the scope of her employment in notarizing the guaranty.

North Fork was not entitled to introduce testimony from a banking expert since it failed to demonstrate how the proposed expert testimony would clarify an issue involving professional and technical knowledge beyond the ken of the typical juror (see, De Long v County of Erie, 60 NY2d 296, 307). In light of the circumstance that the proposed expert testimony was properly rejected and North Fork’s concession that all other discovery has been completed, the court properly denied that branch of the cross motion seeking to vacate the note of issue. Concur — Sullivan, P. J., Williams, Rubin, Buckley and Friedman, JJ.