Upon the foregoing papers, defendant WM Specialty Mortgage, LLC (WMSM) moves for an order 1) pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Michael Hope, 2) granting summary judgment in favor of WMSM on its counterclaims/cross claims to quiet title and for equitable subrogation and 3) awarding WMSM costs and disbursements.

Plaintiff commenced this action to set aside a deed conveying the subject property, located at 633 East 49th Street in Brooklyn, from plaintiff to defendant Nicole Anthony (Nicole). Plaintiff's signature on the deed was acknowledged by a notary public, Cheryl Ann Luke, on January 29, 2005. According to the Real Property Transfer Report recorded with the City Register, the property was sold to Nicole for a purchase price of $350,000.00. On January 29, 2005, Nicole encumbered the property with a mortgage to secure a loan from Fremont Investment and Loan (Fremont) in the amount of $280,000.00. According to the HUD-1 settlement statement prepared at the closing, proceeds from the Fremont mortgage were used to satisfy a previous mortgage by Option One Mortgage Corporation (Option One) in the amount of $168,000.00. According to an assignment instrument dated June 12, 2007 and recorded August 7, 2007, WMSM received an assignment of the June 29, 2005 mortgage and note.

On March 27, 2008, WMSM commenced a foreclosure action against Nicole due to her default in making payments under the mortgage (WM Specialty Mortgage LLC v Anthony, et al., Index No. 10123/08). Plaintiff thereafter commenced the instant action [*2]seeking to set aside the deed to Nicole on the grounds of fraud, forgery and/or plaintiff's lack of capacity and to further cancel the WMSM mortgage. In addition, plaintiff asserted causes of action against his former girlfriend and Nicole's mother, defendant Bernice Diaz a/k/a Bernice Anthony (Bernice) for conversion of moneys from plaintiff's bank accounts using a forged or fraudulently obtained power of attorney. WMSM interposed an answer which included two counterclaims/cross claims against plaintiff and Nicole Anthony. In its first counterclaim/cross claim, WMSM requests a declaratory judgment that WMSM is a valid encumbrancer and lienor of the premises free and clear of and superior to any claims which plaintiff or Nicole may have to any interest in the premises. In its second counterclaim/cross claim, WMSM seeks a declaratory judgment that WMSM is entitled to equitable subrogation to the prior Option One mortgage to the extent of the funds used to satisfy that mortgage.

Nicole and Bernice filed a verified answer to WMSM's cross claims on July 22, 2010. However, this pleading, along with their answer to the complaint, was stricken by order dated November 4, 2011 (Hon. Herbert Kramer, J.). The order granted, on default, WMSM's motion to strike the pleadings pursuant to CPLR 3126 for Nicole's and Bernice's failure to comply with WMSM's discovery demands. Plaintiff provided responses to WMSM's notice for discovery and inspection and submitted to an examination before trial (EBT) on March 8, 2013.

In order to obtain summary judgment, a movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]). Once the moving party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial (Id.; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

CPLR 4538 provides that "[c]ertification of the acknowledgment or proof of a writing, except a will, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so." "A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'" (ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801, 803 [2012], quoting Son Fong Lum v Antonelli, 102 AD2d 258, 260-261 [1984], affd 64 NY2d 1158 [1985]). The proof required to overcome the presumption must be "so clear and convincing as to amount to a moral certainty" (Albany County Sav. Bank v McCarty, 149 NY 71, 80 [1896] see Paciello v Graffeo, 32 AD3d 461, 462 [2006]). [*3]

Initially, contrary to the contention of plaintiff, the fact that the notary who acknowledged the deed printed her qualifications as opposed to using a stamp does not render the acknowledgment invalid (Executive Law § 137). At his EBT, plaintiff testified that he could not be certain that the signature on the deed was not his signature (EBT Transcript at 74-75), but that he believed his signature on the subject deed was "a lot different" from the signatures on his drivers license and signed documents provided during the course of discovery (EBT Transcript at 77). However, even if plaintiff were to testify unequivocally that he did not sign the deed, such testimony alone is insufficient to overcome the presumption of due execution (see Clark v Mtge. Servs. Unlimited, 78 AD3d 1104 [2010] Osborne v Zornberg, 16 AD3d 643, 644 [2005] Demblewski v Demblewski, 267 AD2d 1058 [1999]). Without additional evidence such as the affidavit of a handwriting expert, the court cannot find that plaintiff has presented evidence so clear and convincing so as to amount to a moral certainty that the deed is forged (cf. Bernard-Cadet v Gobin, 94 AD3d 1030, [2012] Clark, 78 AD3d at 1105). While the signature on the deed is arguably distinctive from the signatures on the discovery documents provided by plaintiff, the signatures are not so strikingly dissimilar that it is clear plaintiff did not sign the deed.

To the extent plaintiff claims the deed was the product of fraud, he provides no detail as to the fraud in his complaint, his EBT testimony or in his affidavit. "A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b)" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). CPLR 3016(b) requires that claims for fraud set forth "the circumstances constituting the wrong ... in detail." In his complaint, plaintiff alleges in conclusory fashion that "the deed was for no consideration" and that Nicole, "intentionally knowingly and willingly and with intent to defraud the plaintiff of his rightful property rights caused a fraudulent deed to be filed." In his affidavit, plaintiff states, without any factual detail, that the "transaction was fraudulent." Plaintiff could not provide any facts to support a claim for fraud at his EBT since he testified that had no recollection of the subject transaction. Finally, plaintiff testified that he had never been examined by a physician for a mental incapacity and that he did not consider himself to be mentally incompetent (EBT Transcript at 60). There is no evidence submitted by plaintiff demonstrating that he was incompetent or lacked capacity to make conveyances on the date of the subject transaction.

WMSM therefore has established as a matter of law that the deed to Nicole is valid and that WMSM has a valid mortgage superior to any interest of plaintiff and Nicole. Plaintiff has not submitted admissible proof sufficient to raise an issue of fact. As a result, WMSM's motion for summary judgment on its first counterclaim/cross claim is granted.

Where the funds of a mortgagee are used to discharge a prior lien upon the property of another, the doctrine of equitable subrogation applies to prevent unjust enrichment by subrogating the mortgagee to the position of the senior lienholder (see [*4]King v Pelkofski, 20 NY2d 326, 333 [1967] Great Eastern Bank v Chang, 227 AD2d 589 [1996]). WMSM submits a copy of the HUD-1 settlement statement (signed by plaintiff in a style very similar to the examples provided in discovery) which indicates that proceeds from the Fremont loan were used to pay off the Option One mortgage. A satisfaction of the Option One mortgage, dated February 16, 2005, was recorded with the City Register on March 10, 2005. Even though WMSM's second counterclaim/cross claim for equitable subrogation may be deemed academic in light of the finding that it holds a valid first mortgage on the property, the undisputed documentary evidence establishes that the Fremont funds were used toward the discharge of the Option One mortgage, and thus WMSM, as Fremont's assignee, would be entitled to be subrogated to Option One's senior position to the extent of the funds so paid.As a result, the branch of WMSM's summary judgment motion on its counterclaims/cross claims is granted in all respects, and the branch of that motion to dismiss plaintiff's action as against WMSM, with prejudice, which would result by dismissing plaintiff's first and second causes of action to set aside the deed and to cancel the WMSM mortgage, is also granted. However, that part of WMSM's motion for an award of costs and disbursements is denied. Plaintiff's remaining causes of action against Bernice are hereby severed and shall continue.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C.