Opinion
02-23-2016
U.S. BANK NATIONAL ASSOCIATION as Trustee, etc., Plaintiff–Appellant, v. Engels Rafael GUTIERREZ, Defendant–Respondent, Francis X. Mortimer et al., Defendants.
Hogan Lovells U.S. LLP, New York (David Dunn of counsel), for appellant. Law Offices of Francis M. DeCaro, Bronx (Richard G. Monaco of counsel), for respondent.
Hogan Lovells U.S. LLP, New York (David Dunn of counsel), for appellant.
Law Offices of Francis M. DeCaro, Bronx (Richard G. Monaco of counsel), for respondent.
TOM, J.P., ANDRIAS, MOSKOWITZ, RICHTER, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered September 17, 2014, which granted the motion of defendant Engels Rafael Gutierrez for summary judgment dismissing the complaint as against him and denied plaintiff's cross motion for summary judgment, unanimously modified, on the law, to deny defendant's motion, and otherwise affirmed, without costs.
Plaintiff contends that it should have been granted summary judgment because, even if the note on which it sues was forged, defendant ratified it as a matter of law. This argument is unavailing. "[R]atification is a question of fact unless the evidence is undisputed and different inferences cannot reasonably be drawn from it, and a necessary element of ratification is intent" (Robinson v. Day, 103 A.D.3d 584, 586, 960 N.Y.S.2d 397 [1st Dept.2013] [internal quotation marks and citation omitted]; see also Cashel v. Cashel, 15 N.Y.3d 794, 908 N.Y.S.2d 143, 934 N.E.2d 876 [2010] ; Montes v. Manufacturers Hanover Trust Co., 82 A.D.2d 751, 440 N.Y.S.2d 22 [1st Dept.1981] ).
However, because there are issues of fact as to whether defendant ratified the note and mortgage, the court should have denied defendant's motion for summary judgment dismissing the complaint. Defendant's motion should also have been denied because there are triable issues as to whether the note, mortgage and other documents were forged. In this regard, it is noted that the mortgage was notarized (see Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 83, 43 N.E. 427 [1896] ).