RIVERA v. HERNANDEZ (2000)

In an action, inter alia, for the partition of real property and an accounting, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Cutrona, J.), dated April 3, 2000, which, after a nonjury trial, is in favor of the defendant and against him, and determined that the subject property was owned by the defendant.

ORDERED that the plaintiff's notice of appeal from the findings of fact and conclusions of law of the same court, dated June 30, 1999, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] );  and it is further,

ORDERED that the judgment is affirmed, without costs and disbursements.

The plaintiff and the defendant jointly owned the subject property.   The plaintiff claimed that his acknowledged signature on a deed transferring ownership of the property to the defendant alone was forged.   However, the plaintiff failed to provide proof of forgery “so clear and convincing as to amount to a moral certainty” (Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 80, 43 N.E. 427;  see, Lum v. Antonelli, 102 A.D.2d 258, 261, 476 N.Y.S.2d 921, affd. 64 N.Y.2d 1158, 490 N.Y.S.2d 733, 480 N.E.2d 347;  see also, CPLR 4538).   Therefore, the Supreme Court properly determined that the property was owned by the defendant.

MEMORANDUM BY THE COURT.