Opinion
2012-02-7
BANK OF NEW YORK, etc., appellant-respondent, v. John SPADAFORA, et al., defendants,Lucy Spadafora, respondent-appellant.
DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Robert Hermann, Lee S. Wiederkehr, Jacob E. Amir, and Eliot Schuman of counsel), for appellant-respondent. McMahon, McCarthy & Verrelli, Bronx, N.Y. (Matthew J. McMahon of counsel), for respondent-appellant.
DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Robert Hermann, Lee S. Wiederkehr, Jacob E. Amir, and Eliot Schuman of counsel), for appellant-respondent. McMahon, McCarthy & Verrelli, Bronx, N.Y. (Matthew J. McMahon of counsel), for respondent-appellant.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
In an action to foreclose a mortgage on certain real property, the plaintiff appeals from (1) a decision of the Supreme Court, Westchester County (Friedman, J.H.O.), dated February 12, 2010, made after a nonjury trial, and (2) so much of a judgment of the same court dated August 18, 2010, as, upon the decision, declared that a certain deed and the subject mortgage are null and void, and is in favor of the defendants and against it dismissing the complaint, and the defendant Lucy Spadafora cross-appeals (1) from the same decision, and (2), as limited by her brief, from so much of the same judgment as imposed an equitable lien against the subject property in favor of the plaintiff in the sum of $328,796.97.
ORDERED that the appeal and cross appeal from the decision are dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510, 472 N.Y.S.2d 718); and it is further,
ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff commenced the instant action against, amongst others, the defendant John Spadafora (hereinafter John) seeking to foreclose a mortgage (hereinafter the subject mortgage) on certain real property allegedly owned by John (hereinafter the subject premises). Sometime thereafter, Lucy Spadafora (hereinafter Lucy), John's wife, was granted leave to intervene in the action as a party defendant, claiming that her signature was forged on the deed by which she allegedly had conveyed title to the subject premises to John (hereinafter the subject deed).
The Supreme Court conducted a nonjury trial, after which it issued a decision in which it explained its conclusion, inter alia, that Lucy's signature on the subject deed was forged, and that title to the subject premises remained with her, but that the plaintiff is entitled to an equitable lien against the subject premises.
Thereafter, the Supreme Court entered a judgment upon the decision in which it declared that both the subject deed and the subject mortgage on the premises are null and void, and dismissed the complaint. The plaintiff appeals from those portions of the judgment. The judgment also, inter alia, imposed an equitable lien against the subject premises in favor of the plaintiff in the sum of $328,796.97. Lucy cross-appeals from that portion of the judgment.
Contrary to the plaintiff's contention, under the circumstances, the Supreme Court providently exercised its discretion in limiting the rebuttal testimony of the plaintiff's handwriting expert ( see Farrell v. Gelwan, 30 A.D.3d 563, 563–564, 817 N.Y.S.2d 143; American Linen Supply Co. v. M.W.S. Enters., 6 A.D.3d 1079, 1081, 776 N.Y.S.2d 387; Gobbelet v. Hit Cycle Corp., 121 A.D.2d 682, 683, 504 N.Y.S.2d 55; cf. Simpson v. Bellew, 161 A.D.2d 693, 698, 555 N.Y.S.2d 829), and in refusing to allow two notaries public to testify as rebuttal witnesses ( see Farrell v. Gelwan, 30 A.D.3d at 563, 817 N.Y.S.2d 143; see also Hageman v. Jacobson, 202 A.D.2d 160, 161, 608 N.Y.S.2d 180; Kaminsky v. Segura, 4 Misc.3d 1019[A], 2004 N.Y. Slip Op. 50963[U], 2004 WL 1945007 [2004], affd. 26 A.D.3d 188, 810 N.Y.S.2d 25).
“In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, bearing in mind that due regard must be given to the trial judge who was in the position to assess the evidence and the credibility of the witnesses” ( D'Argenio v. Ashland Bldg., LLC, 78 A.D.3d 758, 758, 910 N.Y.S.2d 550; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; A. Montilli Plumbing & Heating Corp. v. Valentino, 90 A.D.3d 961, 961, 935 N.Y.S.2d 647).
Here, the Supreme Court's determinations that the signature on the subject deed was forged, rendering it and the subject mortgage invalid ( see Bryant v. Bryant, 58 A.D.3d 496, 496, 870 N.Y.S.2d 352; cf. John Deere Ins. Co. v. GBE/Alasia Corp., 57 A.D.3d 620, 622, 869 N.Y.S.2d 198), and that the plaintiff is entitled to an equitable lien against the subject premises ( see King v. Pelkofski, 20 N.Y.2d 326, 333, 282 N.Y.S.2d 753, 229 N.E.2d 435; Federal Natl. Mtge. Assn. v. Woodbury, 254 A.D.2d 182, 182, 679 N.Y.S.2d 116; cf. Crispino v. Greenpoint Mtge. Corp., 304 A.D.2d 608, 609–610, 758 N.Y.S.2d 367), are warranted by the facts. Thus, we decline to disturb those determinations.