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IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF WOULD HAVE HAD TO PROVE THE DEED WAS FORGED; TO WIN A MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE, HOWEVER, THE DEFENDANT MUST UTTERLY REFUTE PLAINTIFF’S ALLEGATION THE DEED WAS FORGED WHICH DEFENDANT FAILED TO DO HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Golden Bridge’s) motion to dismiss this action to set aside a deed (allegedly forged) should not have been granted. The decision clearly lays out the subtle but crucial differences in proof requirements between a defendant’s motion to dismiss based on documentary evidence and a a plaintiff’s motion for summary judgment.

On February 3, 2004, the plaintiff acquired title to real property located in Brooklyn. In 2017, the property was transferred to the defendant Rutland Development Group, Inc. (hereinafter Rutland), by the deed that is the subject of this action. Rutland granted the defendant Golden Bridge, LLC (hereinafter Golden Bridge), a mortgage on the property in exchange for the sum of $625,000. * * *

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate … . A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes [a] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . …

Here, in support of its motion, Golden Bridge submitted … a notary’s certificate of acknowledgment attesting that the plaintiff had appeared before him … , and executed the subject deed or acknowledged her execution thereof, a resolution by Rutland authorizing the plaintiff to borrow a sum of money from Golden Bridge on Rutland’s behalf, and bank checks … . Although Golden Bridge did proffer some evidence that the plaintiff may have received consideration as a result of the transfer of the property, Golden Bridge’s evidentiary submissions were insufficient to utterly refute the plaintiff’s allegations that the deed and other relevant documents were forged, she received no consideration, and she did not have any relationship to Rutland (see CPLR 4538 …). On a motion for summary judgment, the plaintiff would have had to proffer evidence so clear and convincing as to amount to a moral certainty, in order to rebut the presumption, based on the notary’s certificate of acknowledgment, that the deed was duly executed (see CPLR 4538 …). Here, however, on a motion to dismiss the complaint pursuant to CPLR 3211(a), the questions are whether the plaintiff has a cause of action and whether Golden Bridge conclusively established a defense as a matter of law. Aleyne v Rutland Dev. Group, Inc.,2023 NY Slip Op 00975, Second Dept 2-22-23

Practice Point: Here in this action to set aside a deed as forged, the proof requirements for a plaintiff’s motion for summary judgment and defendant’s motion to dismiss based on documentary evidence were compared. In the summary judgment motion, plaintiff would have to prove the deed was forged. In the motion to dismiss, the defendant must produce documentary evidence which utterly refutes plaintiff’s allegation the deed was forged–two very different standards of proof.

 

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