DEMBLEWSKI v. Kenneth Demblewski, Dennis R. Demblewski, Elaine Hegedusich, f/k/a Elaine Demblewski, and Patricia Pasinski, Defendants-Appellants.

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

Richard DEMBLEWSKI, as Executor of the Estate of Theodore Demblewski, Deceased, Plaintiff-Respondent, v. Richard DEMBLEWSKI, as Executor of the Estate of Theodore Demblewski, Deceased, et al., as Trustees and Subsequent Trustees of the Demblewski Family Trust, et al., Defendants, Kenneth Demblewski, Dennis R. Demblewski, Elaine Hegedusich, f/k/a Elaine Demblewski, and Patricia Pasinski, Defendants-Appellants.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., PINE, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. William D. Scott, Buffalo, for defendants-appellants. David V. Jaworski, Cheektowaga, for plaintiff-respondent.

 Supreme Court erred, following a bench trial, in awarding plaintiff's decedent a 50% interest in the 2055 Walden Avenue and Duke Road properties.   It is well settled that, “where a document on its face is properly subscribed and bears the acknowledgment of a notary public, it ‘give [s] rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary’ ” (Smith v. Smith, 263 A.D.2d 628, 694 N.Y.S.2d 194, lv. dismissed 94 N.Y.2d 797, 700 N.Y.S.2d 429, 722 N.E.2d 509, quoting Spilky v. Bernard H. La Lone Jr., P. C., 227 A.D.2d 741, 743, 641 N.Y.S.2d 916).   Although plaintiff's decedent testified that his signatures on various deeds were forged, that “ ‘unsupported testimony of [an] interested witness[ ]’ ” is insufficient to meet his burden of proof (Son Fong 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, quoting Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 80, 43 N.E. 427;  see also, Spilky v. Bernard H. La Lone Jr., P.C., supra, at 743, 641 N.Y.S.2d 916).   Thus, based upon the recorded deeds, we conclude that plaintiff is entitled to only a 10% interest in the 2055 Walden Avenue and Duke Road properties, and we modify the judgment accordingly.

We do not address the contention of plaintiff regarding costs and disbursements because he failed to take an appeal (see, CPLR 5515 [1] ).

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: