CPLR R. 3212 and R. 3116: proof, inadmissible at trial, but sufficient to defeat SJ

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a) Signing.

CPLR R. 3212
Motion for summary judgment

Moffett v Gerardi, 2010 NY Slip Op 05990 (App. Div., 2nd, 2010)

"A certificate of acknowledgment attached to an instrument such as a
deed raises a presumption of due execution, which presumption, in a case
such as this, can be rebutted only after being weighed against any
evidence adduced to show that the subject instrument was not duly
executed" (Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd
64 NY2d 1158; see Beshara [*2]v
51 AD3d 837
, 838). Here, the defendant made a prima
facie showing of entitlement to judgment as a matter of law by providing
a copy of the notarized January 1998 deed which included a certificate
of acknowledgment (see Beshara v Beshara, 51 AD3d 837; Elder v Elder, 2 AD3d 671).

In opposition, the plaintiff submitted his own affidavit
contesting the signature on the deed, the deposition transcript of the
notary public who purportedly notarized the deed, and an unsworn report
of a handwriting expert. The plaintiff failed to establish that he had
sent the deposition transcript to the notary public for review pursuant
to CPLR 3116(a), thereby rendering the transcript inadmissible at trial
(see Marmer v IF USA Express, Inc., 73 AD3d 868;
Martinez v 123-16 Liberty Ave. Realty Corp., 47
AD3d 901
, 902; McDonald v Mauss, 38 AD3d 727, 728; Pina v Flik Intl. Corp., 25 AD3d 772; Scotto v Marra, 23 AD3d 543; Santos v Intown Assoc., 17 AD3d 564).
However, this failure did not preclude the Supreme Court from
considering the transcript in opposition to the motion for summary
(see Friends of Animals v Associated Fur Mfrs., 46 NY2d
1065, 1068; Phillips v Kantor & Co., 31 NY2d 307; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d
; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453; Silvestri
v Iannone,
261 AD2d 387; Zuilkowski v Sentry Ins., 114 AD2d
453). Generally, when opposing a motion for summary judgment, a party
must submit evidence in admissible form sufficient to raise a triable
issue of fact
(see Zuckerman v City of New York, 49 NY2d 557). In
certain circumstances, "proof which might be inadmissible at trial may,
nevertheless, be considered in opposition to a motion for summary
(Zuilkowski v Sentry Ins., 114 AD2d 453), as long as
the party seeking to use such evidence provides an acceptable excuse for
the failure to tender the evidence in admissible form
(see Friends
of Animals v Associates Fur Mfrs.,
46 NY2d at 1068; Allstate Ins.
Co. v Keil,
268 AD2d 545), and the inadmissible evidence does not
provide the sole basis for the denial of summary judgment
Phillips v Kantor & Co.,
31 NY2d 307). 

Here, the plaintiff's excuse that it was his understanding that the
defendant, as the party who had noticed the deposition and hired the
court reporter, was forwarding a copy of the deposition transcript to
the notary public for review, was reasonable. Moreover, the notary
public's deposition testimony that the deed was not notarized in the
usual manner in which he notarized documents and, as a result, that he
would not testify that the signature on the deed belonged to the
plaintiff, along with the plaintiff's own affidavit that he did not sign
the subject deed, rebutted the presumption of the deed's validity as
created by the certificate of acknowledgment
(see Alvarez v Prospect
68 NY2d 320; Hoffman v Kraus, 260 AD2d 435).
Accordingly, since there is a triable issue of fact, the Supreme Court,
upon reargument, should have adhered to its prior determination denying
the defendant's motion for summary judgment dismissing the complaint.

The bold and underline are mine.

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