HSBC BANK USA v. Naida I. Velazquez, etc., appellant. (2008)

In an action to foreclose a mortgage, the defendant Naida I. Velazquez appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated September 25, 2006, as denied her motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only where “the documentary evidence that forms the basis of the defense [is] such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claims” (Saxony Ice Co., Div. of Springfield Ice Co., Inc. v. Ultimate Energy Rest. Corp., 27 A.D.3d 445, 446, 810 N.Y.S.2d 344;  see Museum Trading Co. v. Bantry, 281 A.D.2d 524, 525, 721 N.Y.S.2d 822).   The documentary evidence submitted by the defendant Naida I. Velazquez was sufficient to demonstrate that the subject conveyance to the defendant Bruno Decaudin was unauthorized.   The conveyance was made by one of the two attorneys-in-fact of Velazquez's mother, in disregard of the requirement set forth in the power of attorney that they “act together” (see Unterberg v. Elder, 211 N.Y. 499, 105 N.E. 834;  General Obligations Law § 5-1501[3];  1-11 Warren's Weed, New York Real Property, Attorney-in-Fact § 11.25 [5th ed.] ).   Nonetheless, an unauthorized conveyance may be ratified by the subsequent acts of the principal (see Lipman v. Vebeliunas, 39 A.D.3d 488, 490, 833 N.Y.S.2d 210;  Alexandru v. Berritt, 168 A.D.2d 472, 474, 562 N.Y.S.2d 712;  Rende & Esposito Consultants v. St. Augustine's R.C. Church, 131 A.D.2d 740, 743, 516 N.Y.S.2d 959;  Diocese of Buffalo v. McCarthy, 91 A.D.2d 213).   Since the documentary evidence does not establish the absence of ratification, the motion was properly denied.

Velazquez's remaining contentions are without merit.