ROTH v. SPEILMAN (2006)

Judgment, Supreme Court, New York County (Joan A. Madden, J.), entered June 15, 2004, upon a jury verdict, dismissing the complaint and bringing up for review an order, same court and Justice, entered on or about October 15, 2003, which denied plaintiff's motion to set aside the verdict, unanimously affirmed, without costs.   Appeal from the October 15, 2003 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The court properly concluded that defendants' certification of financial statements to the United States Department of Housing and Development, which included the alleged loan purportedly owed to plaintiff's decedent, merely created an issue of fact as to the existence of the loan and defendants' obligation to pay (see Heisler v. Gingras, 90 N.Y.2d 682, 688, 665 N.Y.S.2d 59, 687 N.E.2d 1342 [1997];  Cognetta v. Valencia Dev., Inc., 8 A.D.3d 318, 320, 778 N.Y.S.2d 80 [2004];  Knoll v. Datek Sec. Corp., 2 A.D.3d 594, 595, 769 N.Y.S.2d 581 [2003];  Skiadas v. Terovolas, 271 A.D.2d 521, 706 N.Y.S.2d 138 [2000];  Estate of Vengroski v. Garden Inn, 114 A.D.2d 927, 495 N.Y.S.2d 200 [1985] ).   We reject plaintiff's theory of “estoppel by certification,” which would preclude defendants as matter of law from disputing the validity of the alleged loan (see Heisler, 90 N.Y.2d at 688, 665 N.Y.S.2d 59, 687 N.E.2d 1342).