US Bank Natl. Assn. as Trustee v. Gutierrez , 25 N.Y.S.3d 206 ( 2016 )

US Bank Natl. Assn. as Trustee v Gutierrez (2016 NY Slip Op 01262)

US Bank Natl. Assn. as Trustee v Gutierrez

2016 NY Slip Op 01262

Decided on February 23, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2016
Tom, J.P., Andrias, Moskowitz, Richter, JJ.

287 382371/09

[*1]US Bank National Association as Trustee, etc., Plaintiff-Appellant,

v

Engels Rafael Gutierrez, Defendant-Respondent, Francis X. Mortimer et al., Defendants.

Hogan Lovells US LLP, New York (David Dunn of counsel), for appellant.

Law Offices of Francis M. DeCaro, Bronx (Richard G. Monaco of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered September 17, 2014, which granted the motion of defendant Engels Rafael Gutierrez for summary judgment dismissing the complaint as against him and denied plaintiff's cross motion for summary judgment, unanimously modified, on the law, to deny defendant's motion, and otherwise affirmed, without costs.

Plaintiff contends that it should have been granted summary judgment because, even if the note on which it sues was forged, defendant ratified it as a matter of law. This argument is unavailing. "[R]atification is a question of fact unless the evidence is undisputed and different inferences cannot reasonably be drawn from it, and a necessary element of ratification is intent" (Robinson v Day, 103 AD3d 584, 586 [1st Dept 2013] [internal quotation marks and citation omitted]; see also Cashel v Cashel, 15 NY3d 794 [2010]; Montes v Manufacturers Hanover Trust Co., 82 AD2d 751 [1st Dept 1981]).

However, because there are issues of fact as to whether defendant ratified the note and mortgage, the court should have denied defendant's motion for summary judgment dismissing the complaint. Defendant's motion should also have been denied because there are triable issues as to whether the note, mortgage and other documents were forged. In this regard, it is noted that the mortgage was notarized (see Albany County Sav. Bank v McCarty, 149 NY 71, 83 [1896]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2016

CLERK