Opinion
April 26, 1994
Appeal from the Supreme Court, New York County (Bruce Wright, J.).
Given that defendant Koo admittedly signed plaintiff's name to the deed, plaintiff's claim that Koo did so without plaintiff's authority cast the burden of proof on defendants, who sought to sustain the validity of the deed, to rebut plaintiff's claim of fraud in the factum by a preponderance of the evidence (see, Fleming v Ponziani, 24 N.Y.2d 105, 110-113; Mix v Neff, 99 A.D.2d 180, 182), as the trial court correctly charged. Defendants waived any right they had to open first by failing to object or even request that they be permitted to do so pending the court's decision as to which side had the burden of proof, and indeed affirmatively agreeing with the court that such decision could be postponed until the close of evidence. We have considered defendants' remaining claims and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Carro, Wallach and Asch, JJ.