Upon the foregoing papers it is ordered that the motion by Third-Party Defendants for summary judgment in their favor and dismissing the third-party complaint as against them, is denied, for the following reasons:

This is an action to set aside as a forgery the February 7, 2006 transfer of real property from the defendant Emily Banks to the defendant/third party Plaintiff, Rockaway Storage, Inc. Banks sold the Rockaway Storage the subject property by using two Powers of Attorney that Plaintiffs allege were forged. Plaintiffs contend that they are the real owners of the property in question and were not aware of the fraudulent Powers of Attorney or what they were being used for. Subsequently, Rockaway commenced a third-party action sounding in negligence against several parties, including the moving third-party Defendants who notarized the two Powers of Attorney involved in the real property transfer. Third-Party Defendants now move for summary judgment in their favor based upon their having fully adhered to the duties imposed upon them in notarizing the subject documents. Rockaway opposes this motion.

It is axiomatic that the Summary Judgment remedy is drastic and harsh and should be used sparingly. The motion is granted only when a party establishes, on papers alone, that there are no material issues and the facts presented require judgment in its favor. It must also be clear that the other side's papers do not suggest any issue exists. Moreover, on this motion, the court's duty is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. See, Barr v. County of Albany, 50 NY2d 247 (1980); Miceli v. Purex, 84 AD2d 562 (2d Dept. 1981); Bronson v March, 127 AD2d 810 (2d Dept. 1987.) Finally, as stated by the court in Daliendo v Johnson, 147 AD2d 312,317 (2d Dept. 1989), "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied."

In support of their motion, Third-Party Defendants have submitted an affidavit of Nigel Chamblin, wherein he states that on or about January 9, 2006, a couple came into the office of People, located at 1717 Hempstead Turnpike, Elmont, New York, asking for a Notary to witness their signatures on the Powers of Attorney. Mr. Chamblin responded that he is a Notary and asked for photo identification from each person. Both produced New York State Drivers Licenses and the names and photographs matched the couple standing before him. Each then signed the Power of Attorney and he notarized their signatures. Mr. Chamblin then recorded this transaction in the Company's Notary Public Register and the two signatories left the office, without being charged a fee. Third Party Defendants claim Mr. Chamblin's actions in notarizing the document were in accordance with all expected standard. Also, third-party defendant People claims any negligence by Mr. Chamblin cannot be vicariously imposed upon them. The Court notes that Third Party Defendants have not submitted any binding authority to support their positions.

New York State Executive Law, Section 135, provides that:

"Every notary public duly qualified is hereby authorized and empowered within and throughout the State to administer oaths and affirmations, to take affidavits and depositions, to receive and certify acknowledgments or proof of deeds, mortgages and powers of attorney [*2]and other instruments in writing;. . .

For any misconduct by a notary public in the performance of any of his powers such notary public shall be liable to the parties injured for all damages sustained by them. "

One of the principle functions of a New York notary is to verify the identity of a person signing a document so that when submitted to court, for example, the power of a notary may be relied upon to authenticate the document as being from an out-of-court but under-oath declarant. Notarization itself, however, is only evidence that the document was affirmed and signed before an authorized official. Notarial misconduct can be for wilful, fraudulent or negligent actions of a notary. The Plaintiff must also prove that he or she was injured and that there was reliance to his or her detriment on the alleged negligence of the Notary Public. See, Plemmenou v. Anninos, 12 AD3d 657, 785 N.Y.S.2d 120 (2d Dep't 2004). Rastelli v Gassman, 231 AD2d 507 (2d Dept 1996.)

Here, Mr. Chamblin was given acceptable proof of identification. This Court is not inclined to adopt Rockaway's claim that there is a duty on a Notary to verify the validity of the driver's licenses or to make copies of the licenses. The Court does note that given the ease at which such verification is available, it is appropriate for the New York State Legislature to visit this issue. However, Mr. Chamblin failed in his duty to administer an oath (e.g. "Do you swear or affirm that the signatures you have affixed to this document are true"), prior to witnessing the execution. Accordingly, the proof is insufficient to meet the Third-Party Defendants initial burden on a motion for summary judgment. Moreover, the Court finds issues of fact as to People's vicarious liability for any possible Notarial misconduct since Mr. Chamblin relied upon the procedures set out by People. Accordingly, the motion is denied in its entirety.

Dated: April 28, 2008..................................................

Orin R. Kitzes, J.S.C.