Commercial Division Blog

Posted: November 22, 2015 / Categories Commercial, Contracts, Summary Judgment

Summary Judgment in Lieu of Complaint Reversed Because of Question of Fact Regarding Forgery

On November 18, 2015, the Second Department issued a decision in Kitovas v. Megaris, 2015 NY Slip Op. 08388, reversing a grant of summary judgment in lieu of complaint because the defendant had raised a question of fact regarding the validity of a promissory note.

In Kitovas, the plaintiff brought an action for summary judgment in lieu of complaint based on a promissory note. The IAS court granted the plaintiff judgment. The Second Department reversed, explaining:

Something more than a mere assertion of forgery is required to create an issue of fact contesting the authenticity of a signature. Here, in addition to his own affidavit, the defendant submitted a copy of his driver license as an example of his signature, and an affidavit from the individual who allegedly witnessed execution of the note. Review of the defendant's signature on his driver license and the signature on the note reveal some difference to the untrained eye. More importantly, the individual who is identified as the witness on the note stated in his affidavit that he had no recollection of witnessing the defendant signing the note, and that he believed that his own signature thereon was forged. Furthermore, while the defendant did not submit an expert affidavit, an expert opinion is not required to raise a triable issue of fact regarding a forgery allegation. Finally, the defendant's signature on the note was not notarized, and thus, there is no presumption of due execution.

(Internal quotations and citations omitted) (emphasis added).