Opinion
2009-798 W C.
Decided November 19, 2010.
Appeal from an order of the City Court of New Rochelle, Westchester County (Preston S. Scher, J.), dated November 18, 2008. The order, insofar as appealed from, granted defendant's motion for summary judgment.
ORDERED that the order, insofar as appealed from, is reversed without costs and defendant's motion for summary judgment is denied.
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ.
Plaintiff brought this action to recover a portion of the sum he had paid to defendant, as escrow agent, at the June 27, 2000 closing on his purchase of real property located in the Bronx, New York. Defendant moved for summary judgment. In support of its motion, defendant submitted the affidavit of its chief claims counsel, Richard J. King, who alleged that plaintiff had entered into an escrow agreement with defendant, titled a "Deposit Agreement," which agreement authorized defendant to pay out plaintiff's escrowed funds as it did. Defendant's motion was supported in part by a copy of an alleged "Deposit Agreement," which consisted of a single page, and stated that the deposit was "for the PURPOSE INDICATED BELOW, and upon the TERMS mentioned ON THE REVERSE SIDE HEREOF which TERMS hereby are MADE PART OF THIS AGREEMENT." It enumerated various payments due for real estate taxes, interest, and water and sewer charges. The "reverse side" of the agreement was not included in defendant's moving papers.
In opposition to the motion, plaintiff admitted that he had entered into a deposit agreement, but denied that the agreement proffered by defendant was the agreement he had signed, disputed the authenticity of his signature on that agreement, and asserted that, although defendant held monies of his in escrow, defendant had also collected escrow monies from the seller of the property, and that the seller's escrowed funds should have been used to pay for the water and sewer charges that had accrued prior to the passage of title. In support of his claim that the signature on the Deposit Agreement was not authentic, plaintiff submitted a copy of a loan settlement sheet which, he said, he had signed at the closing. Plaintiff asserted that the two signatures were obviously different from each other.
It is incumbent on a party moving for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Once such a showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact requiring a trial of the action ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557; Davenport v County of Nassau, 279 AD2d 497). Summary judgment is a drastic remedy which should only be employed where there is no doubt as to the absence of triable issues ( Kolivas v Kirchoff, 14 AD3d 493).
Even if it be assumed that defendant made a prima facie showing that it had paid out all of plaintiff's escrowed funds to governmental authorities in a manner consistent with the Deposit Agreement, plaintiff adequately demonstrated the existence of a material issue of fact as to the authenticity of his signature on the Deposit Agreement, given the obvious difference between his alleged signature on that agreement and his signature on other documents in the record. As there existed unresolved issues of fact as to the authenticity of plaintiff's signature on the Deposit Agreement that defendant offered in support of its motion for summary judgment, as well as the contents of the escrow agreement that plaintiff signed, the City Court erred in granting defendant's motion for summary judgment. Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment is denied.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.