Opinion
December 30, 1999
Appeal from Judgment of Supreme Court, Erie County, NeMoyer, J. — RPAPL.
Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
PRESENT: GREEN, J. P., PINE, PIGOTT, JR., SCUDDER AND CALLAHAN, JJ.
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 [decided July 8, 1999], lv dismissed 94 N.Y.2d 797 [decided Oct. 21, 1999], quoting Spilky v. Bernard H. La Lone Jr., P. C., 227 A.D.2d 741, 743). 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, affd 64 N.Y.2d 1158, quoting Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 80; see also, Spilky v Bernard H. La Lone Jr., P. C., supra, at 743). 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).