Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 8, 2026

2021-09490, 2022-04846, (Index No. 712708/17)

Betsy Barros, J.P.

Lara J. Genovesi

Lourdes M. Ventura

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, (1) the plaintiff appeals, and the defendant Brenda Pruitt cross-appeals, from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated November 5, 2021, and (2) the plaintiff appeals from an order of the same court dated March 8, 2022. The order dated November 5, 2021, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Brenda Pruitt and dismissing her counterclaims, and to strike that defendant's affirmative defenses. The order dated November 5, 2021, insofar as cross-appealed from, denied that branch of the defendant Brenda Pruitt's cross-motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her on the ground of lack of standing. The order dated March 8, 2022, insofar as appealed from, in effect, upon renewal and reargument, adhered to the prior determination in the order dated November 5, 2021, denying those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Brenda Pruitt and dismissing her counterclaims, and to strike that defendant's affirmative defenses.

ORDERED that the appeal from the order dated November 5, 2021, is dismissed, without costs or disbursements, as the portion of the order appealed from was superseded by the order dated March 8, 2022, made, in effect, upon renewal and reargument; and it is further,

ORDERED that the order dated November 5, 2021, is affirmed insofar as cross-appealed from, without costs or disbursements, and it is further,

ORDERED that the order dated March 8, 2022, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against, among others, the defendant Brenda Pruitt (hereinafter the defendant) to foreclose a mortgage encumbering certain real property located in Queens. The defendant's answer included an affirmative defense of lack of standing and a second [*2]counterclaim alleging that her signature on the note and mortgage was forged. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint and dismissing the defendant's counterclaims, and to strike her affirmative defenses. The defendant opposed the plaintiff's motion and cross-moved, among other things, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her on the ground of lack of standing or, alternatively, pursuant to CPLR 3025(b) for leave to amend her answer and her counterclaims, seeking to plead additional facts relating to her allegations of fraud. The plaintiff opposed the cross-motion. In an order dated November 5, 2021, the Supreme Court, inter alia, denied those branches of the plaintiff's motion, denied that branch of the defendant's cross-motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her on the ground of lack of standing, and granted that branch of the defendant's cross-motion which was for leave to amend her answer and counterclaims. The plaintiff appeals from the denial of those branches of its motion, and the defendant cross-appeals from the denial of that branch of her cross-motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her on the ground of lack of standing.

Thereafter, the plaintiff moved, in effect, among other things, for leave to renew and reargue those branches of its prior motion which were for summary judgment on the complaint and dismissing the defendant's counterclaims, and to strike her affirmative defenses. The defendant opposed the motion. In an order dated March 8, 2022, the Supreme Court, inter alia, in effect, upon renewal and reargument, adhered to the prior determination in the order dated November 5, 2021, denying those branches of the plaintiff's prior motion. The plaintiff appeals.

Contrary to the defendant's contention, the Supreme Court properly denied that branch of her cross-motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her on the ground of lack of standing. Where, as here, a defendant moves to dismiss the complaint pursuant to CPLR 3211(a)(3) on the ground of lack of standing, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied" (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60; see Phoenix Grantor Trust v Exclusive Hospitality, LLC, 172 AD3d 923, 925-926). Here, the defendant failed to establish, prima facie, the plaintiff's lack of standing, as she failed to eliminate questions of fact regarding the plaintiff's standing as the holder or assignee of the note on the date of commencement of the action (see Cenlar FSB v Lanzbom, 168 AD3d 670, 671; BAC Home Loans Servicing, LP v Rychik, 161 AD3d 924, 926).

Upon, in effect, renewal and reargument, the Supreme Court properly adhered to its prior determination denying that branch of the plaintiff's motion which was for summary judgment dismissing the defendant's second counterclaim alleging that the defendant's signature was forged. A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises a rebuttable presumption of due execution, which may be overcome only on "'proof so clear and convincing as to amount to a moral certainty'" (Stein v Doukas, 98 AD3d 1026, 1029, quoting Albany County Sav. Bank v McCarty, 149 NY 71, 80). "Although an expert opinion is not necessarily required in order to establish that a document is a forgery, where an expert opinion is offered, the expert must 'state with reasonable professional certainty that the signature at issue is not authentic'" (Kanterakis v Minos Realty I, LLC, 151 AD3d 950, 951-952, quoting Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 384; see Deutsche Bank Natl. Trust Co. v Crosby, 201 AD3d 878, 880-881). Here, while the plaintiff submitted, among other things, a copy of the note and mortgage with a certificate of acknowledgment, the defendant's expert unequivocally opined that the signatures appearing on the mortgage loan documents in question "were not written" by the defendant, the author of known writing samples annexed to the expert's affidavit. Accordingly, the affidavit of the defendant's expert, along with the defendant's remaining submissions, were sufficient to raise a triable issue of fact as to whether the defendant's signature on the documents was authentic (see James v Albank, 307 AD2d 1024, 1025; cf. Clark v Mortgage Servs. Unlimited, 78 AD3d 1104, 1105).

The plaintiff's remaining contentions are without merit.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court