Donna Ficara, limited Administrator of the Estate of Anthony J. Ficara a/k/a Anthony Ficara (“Movant”), moves by Order to Show Cause to reject the Notice of Appearance (“NOA”) filed by counsel to Anthony Ficara and Elizabeth Ficara, children of decedent, by their counsel, Anthony J. Lamberti, Esq. Movant alleges that the filed NOA was not executed by the two children of decent, but signed by their mother, Florence Ficara.In support of her application, Movant has submitted the affirmation of her counsel, which cites hearsay statements from “a representative of the Social Security Administration” (Affirmation of Pauline D. Gold, para. 14) which stated that certain consents submitted to the Social Security Administration were fraudulent. These consents were provided to Movant’s counsel by Garret Fruchtman, then counsel for Florence Ficara. (Affirmation of Pauline D. Gold, para. 12) Movant also attached submitted copies of the executed NOA of the decedent’s children, the consents submitted to the Social Security Administration and the NOA filed on behalf of Florence Ficara as exhibits. Movant also submitted an affidavit which alleges that the NOA and Social Security Administration consents were forged, “upon information and belief.”In opposition, Florence Ficara, submits an affidavit denying the allegations and supported it with a copy of the business card of the Notary Public who notarized their NOA and photographs of the deponent’s execution of her NOA, and an email from the Bank of America. Counsel, Anthony J. Lamberti, Esq, also submits an affirmation in opposition on behalf of his clients, Anthony Ficara and Elizabeth Ficara. Lamberti affirms that he sent the retainer agreement by mail to his clients, which was returned executed and notarized. He also states that he was unable to depose the notary in time for the opposition to be submitted.In order to prove a forgery, the movant must show the genuineness of a signature compared to the disputed signature. Such may be proven by expert testimony, testimony of someone with personal knowledge of the genuineness of the signature or other verifiable means. Turnure v. Breitung, 195 AD 200 (1st Dept 1921). “The question is not “how much” evidence, but whether some evidence has been adduced upon each and every element of a cause of action or defense.” Freeman Check Cashing, Inc. v. State, 97 Misc 2d 819, 821 (Ct of Claims, 1979) (holding that the presumption of genuineness of the signatures could be overcome when some evidence was presented proving forgery, hearsay statements were not firsthand proof, and any differences or variations in the signatures alone did not prove forgery in the absence of proof as to which signatures were genuine).Movant has not submitted any legally sufficient evidence whatsoever to support a claim of forgery. She submitted no firsthand proof supporting the allegations. What movant submits in support of her application does not establish genuineness of any original signatures, nor compare genuine signatures to alleged disputed signatures. The heart of Movant’s proof are the hearsay statements of an unknown representative from the Social Security Administration received telephonically. Hearsay statements and bare allegations are simply insufficient to meet Movant’s burden. See Freeman, supra. Therefore, Movant does not meet the threshold to prove a forgery, which would require this Court to search the opposition of the decedent’s children for evidence to overcome the motion.It is therebyORDERED, that the Order to Show Cause is denied in its entirety; and it is furtherORDERED, all parties to appear on May 15, 2019 at 9:30 a.m. for a conference on this matter.Dated: April 29, 2019
