125 Misc. 2d 620 | Buffalo City Court | 1984
OPINION OF THE COURT
The court has in a prior decision dismissed the plaintiff’s cause of action based on negligence as barred by the Statute of Limitations but has allowed the plaintiff to proceed on its cause of action for misconduct on a notary’s common-law duty embodied in section 135 of the Executive Law (111 Misc 2d 1039).
I agree with the logic of the plaintiff’s position. It is that if the defendant Aquino signed the lease agreement at issue, he is liable to the plaintiff. If he didn’t, then the defendant notary, Kremblas, and his employer, "the Bank of New York, are liable for Kremblas’ acts in notarizing the signature of an imposter if those acts constitute misconduct under section 135 of the Executive Law. I find, however, after examining the signature in question, especially plaintiff’s exhibit No. 15 in evidence, that the defendant Aquino did not sign the lease agreement and that therefore he is not liable. I find further that the plaintiff has established the following facts and seeks to use them to make
The plaintiff urges the court to adopt as its definition of “misconduct” the first definition set forth in Black’s Law Dictionary (5th ed, p 901), “A transgression of some established and definite rule of action”. The plaintiff argues that the defendants Kremblas and Bank of New York are liable because Kremblas did not request identification from the imposter and this failure to do so is a breach of the most basic duty of a notary and that is to check the identity of the person for whom he is vouching. The plaintiff has submitted no cases to sustain its position and indeed there are no New York cases to establish precisely what actions constitute misconduct by a notary in a civil case. Misconduct at least encompasses situations where a notary willfully participates in a fraudulent act, but does it encompass other acts such as the ones in question? Black’s Law Dictionary proceeds to define “misconduct” also as “unlawful behavior, willful in character” and lists various synonyms for it but specifically excludes negligence, “but not negligence or carelessness” {ibid.). Black’s also defines “misconduct in office” as “Any unlawful behavior by a public officer in relation to the duties of his office, willful in character” {ibid.). This court therefore holds that misconduct of a notary in a civil case is confined to intentional, fraudulent, or willful acts, and since no such acts have been proven by the plaintiff, the court finds on behalf of the defendants Kremblas and Bank of New York and denies recovery to the plaintiff.
Judgment is therefore rendered on behalf of defendant Aquino against defendants Kremblas and Bank of New York in the amount of $2,552.50 plus costs. All other claims and cross claims are denied.