Opinion
2002-08057
Argued September 22, 2003.
October 27, 2003.
In an action for contribution, the defendant third-party plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered July 8, 2002, as, after a nonjury trial, dismissed the third-party complaint.
Vincent F. Nicolosi, Bayside, N.Y., for defendant third-party plaintiff-appellant.
Kaye Lenchner, Minoela, N.Y. (Mitchell Lenchner of counsel), for third-party defendant-respondent.
Before: DAVID S. RITTER, J.P., ANITA R. FLORIO, SONDRA MILLER, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The third-party plaintiff's action for contribution hinged upon the invalidity of an assignment. It is well settled that a certificate of acknowledgment attached to a written instrument raises a presumption of due execution, and such presumption "can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed" ( Lum v. Antonelli, 102 A.D.2d 258, 260-261, affd 64 N.Y.2d 1158; see Republic Pension Servs. v. Cononico, 278 A.D.2d 470, 472). "A certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of an interested witness, but only on clear and convincing evidence" ( Republic Pension Servs. v. Cononico, supra at 472; see Albany County Savings Bank v. McCarty, 149 N.Y. 71, 80). Under the circumstances presented, the third-party plaintiff failed to present evidence sufficient to rebut the presumption of the duly executed assignment.
RITTER, J.P., FLORIO, S. MILLER and LUCIANO, JJ., concur.