733 N.Y.S.2d 45 | N.Y. App. Div. | 2001
—Order, Supreme Court, New York County (Paula Omansky, J.), entered April 27, 2001, which granted plaintiffs motion to renew and reargue a prior order dismissing the action against defendants Wong and Zhou and, upon reargument, adhered to its original determination, unanimously modified, on the law, to deny the underlying motion to dismiss, the complaint reinstated, and otherwise affirmed, without costs. Order, same court and Justice, entered September 20, 2000, insofar as it denied plaintiffs motion for partial summary judgment as against all defendants, unanimously affirmed, without costs.
A forged deed is void and conveys no title (see, Marden v Dorthy, 160 NY 39; Kraker v Roll, 100 AD2d 424, 430-431; Caccioppoli v Lemmo, 152 App Div 650). “ ‘[A] person cannot be a bona fide purchaser through a forged deed’ ” since the forger has no title to convey in the first instance (Field v Field, 130 Misc 2d 751, 754, quoting 2A Warren’s Weed, New York Real Property, Forgery, § 1.04). Real Property Law § 266 applies to fraud situations that are voidable, not those which are void such as here where a forged deed is alleged. The IAS court’s dismissal of plaintiffs action for failure to state a cause of action, based on the ground that defendants were bona fide purchasers for value, was in error. Plaintiffs motion for partial summary judgment was, however, properly denied since there are numerous, unresolved factual questions about what and when plaintiff knew about his brother’s actions. Concur — Tom, J. P., Andrias, Wallach and Buckley, JJ.