Upon the petitioner's cross motion, inter alia, for leave to renew, the Surrogate's Court properly, upon renewal, inter alia, granted the petitioner's prior motion for summary judgment on the cause of action to direct Mark to return the sum of $266, 900 to the estate for allegedly forged checks. Forgery is the "fraudulent making of a writing to the prejudice of another's rights... or the making malo animo of any written instrument for the purpose of fraud and deceit" (Piedra v Vanover, 174 A.D.2d 191, 194 [internal quotation marks omitted]; see Marden v Dorthy, 160 NY 39, 53). Here, the petitioner established her prima facie entitlement to judgment as a matter of law on the cause of action to direct Mark to return $266, 900 to the estate through her submission of copies of the 109 checks at issue, as well as Mark's sworn affidavit, in which he admitted to endorsing George's name on the relevant checks both before and after George died and then depositing the funds into accounts jointly owned by George and Mark.
Upon the petitioner's cross motion, inter alia, for leave to renew, the Surrogate's Court properly, upon renewal, inter alia, granted the petitioner's prior motion for summary judgment on the cause of action to direct Mark to return the sum of $266,900 to the estate for allegedly forged checks. Forgery is the "fraudulent making of a writing to the prejudice of another's rights ... or the making malo animo of any written instrument for the purpose of fraud and deceit" ( Piedra v. Vanover, 174 A.D.2d 191, 194, 579 N.Y.S.2d 675 [internal quotation marks omitted]; seeMarden v. Dorthy, 160 N.Y. 39, 53, 54 N.E. 726 ). Here, the petitioner established her prima facie entitlement to judgment as a matter of law on the cause of action to direct Mark to return $266,900 to the estate through her submission of copies of the 109 checks at issue, as well as Mark's sworn affidavit, in which he admitted to endorsing George's name on the relevant checks both before and after George died and then depositing the funds into accounts jointly owned by George and Mark.
Upon the petitioner's cross motion, inter alia, for leave to renew, the Surrogate's Court properly, upon renewal, inter alia, granted the petitioner's prior motion for summary judgment on the cause of action to direct Mark to return the sum of $266,900 to the estate for allegedly forged checks. Forgery is the "fraudulent making of a writing to the prejudice of another's rights... or the making malo animo of any written instrument for the purpose of fraud and deceit" (Piedra v Vanover, 174 A.D.2d 191, 194 [internal quotation marks omitted]; see Marden v Dorthy, 160 NY 39, 53). Here, the petitioner established her prima facie entitlement to judgment as a matter of law on the cause of action to direct Mark to return $266,900 to the estate through her submission of copies of the 109 checks at issue, as well as Mark's sworn affidavit, in which he admitted to endorsing George's name on the relevant checks both before and after George died and then depositing the funds into accounts jointly owned by George and Mark.
In New York, forgery is a species of fraud. SeePiedra v. Vanover , 174 A.D.2d 191, 192, 579 N.Y.S.2d 675 (2d Dep't 1992). An action to set aside a contract for fraud is equitable, id. at 194, 579 N.Y.S.2d 675, and thus subject to equitable defenses. Wells Fargo asserts four equitable defenses—ratification, laches, equitable estoppel, and unclean hands—which it argues entitle it to the Policy's proceeds.
We have previously observed that forgery was “defined by the common law to be the fraudulent making of a writing to the prejudice of another's rights, or the making malo animo of any written instrument for the purpose of fraud and deceit” (Marden, 160 N.Y. at 53, 54 N.E. 726 [citations omitted] ). It is therefore logical and reasonable to apply the statute of limitations for fraud to forgery claims (see e.g. Piedra v. Vanover, 174 A.D.2d 191, 194, 579 N.Y.S.2d 675 [2d Dept.1992] ). Under CPLR 213(8), such a cause of action must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff ... discover[s] the fraud, or could with reasonable diligence have discovered it.”
Deutsche Bank's position on this motion, which is that it lacked standing to foreclose and, therefore, did not accelerate the mortgage debt, is inconsistent with the position it took in its foreclosure action, which was that it was the holder of the note and mortgage and that it elected to accelerate the mortgage debt. As a general rule, a litigant is not permitted "to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise" ( Piedra v. Vanover, 174 A.D.2d 191, 197, 579 N.Y.S.2d 675 [internal quotation marks omitted]; seeBihn v. Connelly, 162 A.D.3d 626, 627, 78 N.Y.S.3d 243 ). "The policies underlying preclusion of inconsistent positions are general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings" ( Piedra v. Vanover, 174 A.D.2d at 197, 579 N.Y.S.2d 675 [internal quotation marks and brackets omitted] ).
We have previously observed that forgery was "defined by the common law to be the fraudulent making of a writing to the prejudice of another's rights, or the making malo animo of any written instrument for the purpose of fraud and deceit" (Marden, 160 NY at 53 [citations omitted]). It is therefore logical and reasonable to apply the statute of limitations for fraud to forgery claims (see e.g. Piedra v Vanover, 174 AD2d 191, 194 [2d Dept 1992]). Under CPLR 213 (8), such a cause of action must be commenced within "the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discover[s] the fraud, or could with reasonable diligence have discovered it."
Plaintiff's third cause of action for fraudulent misrepresentation/forgery, as asserted against Govorenkov, alleges that Govorenkov forged his name on the certificate of dissolution for MGVS, resulting in its dissolution on May 25, 2006, and that Govorenkov fraudulently executed the certificate of dissolution for MGVS with the intent to defraud and deceive him, resulting in damages to him. It is well established that “forgery” is but one species of fraud' “ (Piedra v. Vanover, 174 A.D.2d 191, 194 [2d Dept 1992] ). “[A] forgery is defined by the common law to be the fraudulent making of a writing to the prejudice of another's rights ... or the making malo animo of any written instrument for the purpose of fraud and deceit” '
Guarantee and Bawa both plead as second affirmative defenses that plaintiff's claims against them are barred by the statute of limitations. Plaintiff concedes that the relevant statute of limitations is the six year period of of CPLR 213(8), or two years from the discovery or imputed discovery of the fraud under CPLR 203(g) (see Piedra v Vanover, 174 AD2d 191,194-196 [1992]; see also Coombs v Jervier, 74 AD3d 724,725 [2010], lv denied 16 NY3d 709 [2011]). Since plaintiff has pled that the forgery of the deeds occurred, at the latest, in September 2002, the action was commenced more than six years after the fraudulent acts, even if the action is deemed to have been commenced when the complaint in the federal action was filed in October 2009 (see Stylianou v Incorporated Vil. of Old Field, 23 AD3d 454, 457 [2005]; CPLR 205 [a]).
It is extraordinary that Wells Fargo and Chase essentially attempt to claim adverse possession for Allan Soriano when Helena Soriano and Allan Soriano have not made the claim for themselves. Piedra vs. Vanover, 174 AD 2d 191, 194-195 [2d Dept. 1992].