Surrogate KellyEstate of Angelo Paccione, Decased (16-4647/E) — Decedent Arcangelo Paccione a/k/a Angelo Paccione was survived by his daughter, the petitioner, Domenica Paccione. Matthew D’Elia (Matthew) is the decedent’s nephew, as well as the executor and the trustee of the trust at issue.The salient facts are as follows: On August 29, 2013, four testamentary instruments were purportedly executed by the decedent: (1) a Last Will and Testament; (2) The Paccione Family 2013 Irrevocable Trust (“Trust”) which appoints Matthew D’Elia as trustee; (3) a Limited Power of Appointment purportedly exercised by the decedent pursuant to Article IV, Paragraph 1 of the Trust, stating that petitioner is to receive decedent’s property in Laurel, New York and that Matthew D’Elia is to receive decedent’s property in Astoria, New York; and (4) a deed transferring the Astoria property from the decedent to Matthew D’Elia, as trustee of the Trust.At the time these documents were executed, the decedent was a patient at Long Island Care Facility, having been admitted four months earlier, in April of 2013. Decedent remained there until September of 2014, approximately one month before he passed away. After the decedent’s death, Matthew executed a deed dated September 28, 2015 in accordance with the terms of the Trust, whereby the Astoria property was transferred from the Trust to Matthew, individually. Subsequently, on July 12, 2016, the Astoria property was transferred by Matthew to D’Elia Realty, LLC which took out a mortgage against the property in the amount of $295,000.00. Santander Bank, N.A. (Santander Bank) the mortgagee, is the movant herein.On November 21, 2017, petitioner filed a proceeding seeking, inter alia, to set aside, vacate, declare fraudulent and/or void ab initio, the Trust and the deed transferring the Astoria property from the decedent to Matthew, and set aside and cancel as null and void, the mortgage on the Astoria property given by D’Elia Realty, LLC to Santander Bank.Santander Bank now moves, pursuant to CPLR §3212, for summary judgment dismissing the petition, averring it qualifies as a bona fide encumbrancer for value and no triable issues of fact exist upon which the deed could be found void.The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Alvarez v. Prospect Hosp., 68 NY2d 320). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v. Williams, 84 AD2d 648). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion (See, Robinson v. Strong Memorial Hosp., 98 AD2d 976; Gitlin v. Chirinkin, 98 AD3d 561, 561-562). If there is any doubt as to the existence of a triable issue of fact, the motion must be denied (See, Dykeman v. Heht, 52 AD3d 767, 769; Celardo v. Bell, 222 AD2d 547, 548).The first issue to be resolved is whether the movant, Santander Bank, has established prima facie entitlement to summary judgment by demonstrating it is a bona fide encumbrancer for value. Under the law applicable in the present case, a bona fide purchaser or encumbrancer for value is protected in its title unless the deed is void and conveys no title (See, Marden v. Dorthy, 160 NY 39; Yin Wu v. Wu, 288 AD2d 104; Kraker v. Roll, 100 AD2d 424), or it had previous notice of the alleged fraud (Real Property Law §266; see Anderson v. Blood, 152 NY 285; Karan v. Hoskins, 22 AD3d 638), or it had knowledge of facts or circumstances that would have lead a reasonably prudent person to make inquiry into a possible defect of title (See, Royce v. Rymkevitch, 29 AD2d 1029).If the “encumbrancer knows facts that would ‘excite the suspicion of an ordinarily prudent person’ and fails to investigate, the purchaser or encumbrancer will be chargeable with that knowledge which a reasonable inquiry, as suggested by the facts, would have revealed” (Booth v. Ameriquest Mtge. Co., 63 AD3d 769, quoting Anderson v. Blood, 152 NY 285, 293). A mortgagee who does not make such inquiry will not be considered a bona fide encumbrancer for value (See, MERS v. Rambaran, 97 AD3d 802, 804; Thomas v. LaSalle Bank N.A., 79 AD3d 1015, 1017; Vitale v. Pinto, 118 AD2d 774). Santander Bank has the burden of proving that it is a bona fide encumbrancer for value (See, Ochenkowsky v. Dunaj, 137 Misc 674, 676-677, affd 232 AD 441).Therefore, in order to be successful on its motion for summary judgment, Santander Bank must make a prima facie showing that the deed was not void ab initio, that it had no previous notice of any alleged fraud, and that it did not have knowledge of facts or circumstances that would have lead a reasonably prudent person to make inquiry into a possible defect of title. To raise an issue of fact in response, the opposing party must offer evidence to show the deed was forged or that would justify requiring the mortgagee to engage in an inquiry regarding title or fraud (See, Maiorano v. Garson, 65 AD3d 1300).In support of its motion, movant submits, as exhibits, the transcript from the deposition of Steven Kramer, Esq., the attorney who prepared the decedent’s estate planning documents; a transcript of the deposition testimony of Silvana Leone who served as a translator and a witness to the execution of the decedent’s purported Last Will and Testament; a transcript of the deposition testimony of Jessica Geis who served as a witness to same; a recorded mortgage dated September 22, 2016; an attorney affirmation; and an affidavit of Robert Hewitt, Vice President of Santander Bank, N.A.At the outset, the court notes that although the deposition transcripts of witnesses, Silvana Leone and Jessica Geis were submitted by both parties in support of their respective positions, the testimonies are not relevant to the analysis of whether or not the Trust and/or deed were products of forgery. Though all of the testamentary instruments were allegedly executed on August 29, 2013, Silvana Leone and Jessica Geis only testify as to the circumstances surrounding the execution of the decedent’s purported Last Will and Testament and do not address the execution of the Trust or deed at any point during their respective depositions.The court also notes that movant’s counsel’s affirmation is replete with statements alleging that “the petitioner failed to raise any triable issues of fact” demonstrating evidence of forgery. Yet, movant, as the party seeking summary judgment, does not meet the burden of affirmatively establishing prima facie entitlement to judgment as a matter of law by merely pointing to gaps in the petitioner’s case, rather, it must affirmatively demonstrate the merits of its defense (Savekina v. New York City Tr. Auth., 131 AD3d 1156; See, Collado v. Jiacono, 126 AD3d 927). In fact, the movant only refers to the deposition transcript of the attorney-draftsperson in general, without specifying any portions of the transcripts which would contain evidence in support of its claim that it is entitled to summary judgment as a matter of law.Nevertheless, after having ferreted through the documents submitted in evidence in support of the motion, the court finds that the record contains sufficient proof demonstrating, prima facie, that the deed was not a product of forgery.The attorney-draftsman testified during his deposition that he would not have notarized the decedent’s signature on the deed transferring the property from the decedent to the Trust had the decedent not signed it in his presence. Mr. Kramer also testified with some specificity as to his routine practices in preparing testamentary instruments. Furthermore, although the affidavit of Robert Hewitt, Vice President of Santander Bank comes perilously close to being totally conclusory, it does establish that the Bank made a mortgage loan to D’Elia Realty LLC in reliance on public records for the premises which did not reveal any competing interests or claims against title to the premises. Additionally, it establishes that the Bank did not have notice of facts giving rise to a duty to make an inquiry into any possible defects in title. D’Elia Realty, LLC was clothed with evidence of good title enabling it to encumber the property to a party who became a purchaser in faith (See, Marden v. Dorthy, supra). In light of the fact that the deed to the Astoria property was transferred to Matthew D’Elia via a Power of Appointment in accordance with the terms of the Trust, the documents themselves would not have charged Santander Bank with a duty to inquire.In opposition, petitioner submitted, inter alia, a report dated March 19, 2018 of a purported handwriting expert, Jeffrey Luber. While an “expert’s opinion is not required to establish a triable issue of fact regarding a forgery allegation, where an expert is used to counter the moving party’s prima facie proof, the expert opinion must state with reasonable professional certainty that the signature at issue is not authentic” (See, Banco Popular N. Am. v. Victory Taxi Mgmt., 1 NY3d 381, 384; JPMorgan Chase Bank, N.A. v. Bauer, 92 AD3d 641, 642).The court finds that the report submitted by the handwriting expert woefully fails to meet that standard. Mr. Luber’s findings in his report are solely based on photocopies of documents allegedly signed by the decedent from 1971 to 1994. Mr. Luber’s opinion, as reflected in his report, is that “there is a strong probability that Arcangelo Paccione did not sign his name on each of the items Q1 through Q3″, which refers to the Last Will and Testament, the Trust, and the Power of Appointment. The report also states, however, that the expert cannot determine whether the decedent signed his name due to the lack of any contemporaneous known writing from the decedent. Mr. Luber’s report also fails to reach a conclusion concerning whether Matthew D’Elia forged the decedent’s signatures on the propounded instruments, again, due to the lack of any contemporaneous known writings from Mr. D’Elia. Nor does petitioner’s equivocal statement in her papers in opposition that she “never witnessed” the decedent sign any documents change the court’s analysis.Based on the evidence presented, the court finds that the petitioner failed to provide any sufficient evidence with regard to the allegation of forgery to overcome Santander Bank’s prima facie showing of entitlement to judgment as a matter of law. Nor has the petitioner presented any evidence in her opposition indicating that Santander Bank was or should have been aware of any information which would cause it to investigate further.Accordingly, the motion to dismiss the petition is granted.This is the Decision and Order of the court.The Clerk of the Court is directed to forward a copy of this Decision and Order to the parties who have appeared in this proceeding.Dated: April 29, 2019
