ELDER v. John Palanca, respondent.

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

Shaffka ELDER, appellant, v. David ELDER, defendant, John Palanca, respondent.

Decided: December 22, 2003

FRED T. SANTUCCI, J.P., THOMAS A. ADAMS, STEPHEN G. CRANE, and BARRY A. COZIER, JJ. Lonnie G. Tishman, New York, NY, for appellant. Codispoti & Mancinelli, LLP, New York, N.Y. (Bruno F. Codispoti and Oleg R. Sabel of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is the owner of a parcel of real property, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated May 17, 2002, as denied her motion to stay all proceedings in a related action entitled Palanca v. Elder, pending in the Supreme Court, Kings County, under Index No. 14619/99, and granted the cross motion of the defendant John Palanca for summary judgment with respect to the cause of action seeking a declaratory judgment.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the plaintiff is not the owner of the subject property.

The plaintiff was the owner of a parcel of real property located in Brooklyn (hereinafter the property).   In 1984 the plaintiff purportedly signed a deed transferring title to the property to her son, the defendant David Elder (hereinafter David).   The plaintiff contends that her signature on this deed was a forgery.   Subsequently, David entered into a contract to sell the property to the defendant John Palanca.   However, David refused to go forward with the sale and Palanca commenced an action against him for specific performance in the Supreme Court, Kings County.   In that action, the Supreme Court granted Palanca's motion for summary judgment.   Meanwhile, the plaintiff commenced this action against David seeking, inter alia, a judgment declaring that she is the rightful owner of the property.   David failed to appear in this action and the plaintiff was granted a default judgment.   Subsequently, Palanca was permitted to intervene in this action and the default judgment against David was set aside.   Thereafter, the Supreme Court granted Palanca's cross motion for summary judgment with respect to the cause of action for a declaratory judgment.   We affirm.

 In support of his cross motion, Palanca submitted, inter alia, the certificate of acknowledgment which was attached to the executed and duly notarized deed which transferred the property from the plaintiff to David.   “ ‘A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution, which presumption * * * can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed’ ”(Albin v. First Nationwide Network Mtge. Co., 248 A.D.2d 417, 418, 670 N.Y.S.2d 42, quoting Son Fong Lum v. Antonelli, 102 A.D.2d 258, 260-261, 476 N.Y.S.2d 921, affd. 64 N.Y.2d 1158, 490 N.Y.S.2d 733, 480 N.E.2d 347).   In response thereto, the plaintiff failed to present sufficient credible evidence to rebut the presumption of the deed's validity raised by the certificate of acknowledgment.   Furthermore, the plaintiff's allegations of fraud were not set forth with sufficient particularity, but merely took the form of conclusory allegations (see CPLR 3016[b] ).  Accordingly, the Supreme Court properly granted Palanca's cross motion for summary judgment (see Shim v. Exim Capital Corp., 272 A.D.2d 315, 707 N.Y.S.2d 467;  Albin v. First Nationwide Network Mtge. Co., supra ).

The Supreme Court also properly denied the plaintiff's motion to stay all proceedings in the related action as the plaintiff failed to establish entitlement to the relief sought (see Fraguela v. Norwest Mtge., 270 A.D.2d 226, 704 N.Y.S.2d 516).

The plaintiff's remaining contention is without merit.

Since this is an action for a declaratory judgment, the Supreme Court should have directed the entry of a judgment declaring that the plaintiff is not the owner of the subject property (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670;  appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163;  cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

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