Midfirst Bank v. Rath

Mar 29, 2000
Versions:270 A.D.2d 932
706 N.Y.S.2d 651
2000 N.Y. App. Div. LEXIS 3668

—Order unanimously affirmed without costs. Memorandum: In this mortgage foreclosure action, Supreme Court properly granted plaintiff’s motion for summary judgment. By producing the mortgage and the unpaid note, plaintiff met its initial burden of establishing entitlement to judgment as a matter of law, and defendant failed to raise an issue of fact (see, Metropolitan Distrib. Servs. v DiLascio, 176 AD2d 312). We reject the contention of defendant that her “affidavit of non-signature” raised an issue of fact regarding the authenticity of her purported signatures on the note and mortgage. Each document on its face is properly subscribed and bears the acknowledgment of a notary public. “Defendant cannot raise a triable issue of fact * * * simply by alleging, in conclusory form, that the [signatures] were forgeries” (State Bank v McAuliffe, 97 AD2d 607, 608, appeal dismissed 61 NY2d 758). There is a “presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary” (Spilky v Bernard H. La Lone, Jr., P. C., 227 AD2d 741, 743; see, Demblewski v Demblewski, 267 AD2d 1058). (Appeal from Order of Supreme Court, Orleans County, Rath, Jr., J. — Summary Judgment.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.