Dorothy M. Faison,, Appellant,v.Tonya Lewis,, et al., Defendants, Bank of America, N.A., Respondent.BriefN.Y.February 18, 2015To be argued by David Gordon Time Requested: 15 minutes Date brief completed: 61512014 NEW YORK COURT OF APPEALS DOROTHY M. FAISON, as Administratrix of the Estate of Percy Lee Gogins, Jr., Deceased, APL-2014-00080 Plaintiff-Appellant, -against- TONYA LEWIS, a/k/a TONYA TAYLOR, a/k/a TONY A LEWIS TAYLOR, DOROTHY LEWIS, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants, and BANK. OF AMERICA, N.A., Defendant-Respondent. APPELLANT'S BRIEF GORDON & HAFFNER, LLP Attorneys for Plaintiff-Appellant 480 Mamaroneck Avenue Hanison, New York 10528 (914) 381-4848 Of counsel on the B1ief: David Gordon, Esq. Steven R. Haffner, Esq. Kings County Index No. 21046/10 Second Depaitment Docket No. 2011-10613 Table of Co1IJ.tents Table of Authorities ...................................................................... ii PRELIMINARY STATEMENT ........................................................ l QUESTIONS PRESENTED ............................................................. 3 STATEMENT OF NATURE AND FACTS OF CASE ............................ 3 ARGUMENT ............................................................................... 6 I. PLAINTIFF'S CAUSE OF ACTION TO DECLARE THE NULLITY OF THE FORGED DEED IS NOT SUBJECT TO THE STATUTE OF LIMITATIONS ..................... 6 A. Void Ab Initio, the Forged Deed Was Incapable of Affecting Appellant's Rights in the Property, Regardless of Whether Appellant Ever Sought a Declaration of Its Nullity .............. 7 B. Judicial Action Is Not Required to Divest a Void Instrument of Legal Effect; Consequently, Application of the Statute of Limitation to Bar Actions to Declare the Nullity of Such Instruments Would Be Anomalous .................... 9 C. The Second Department's Rationale for Application of the Fraud Statute of Limitations to Appellant's Forgery Claims Was Flawed ........ 10 II. RESPONDENT LACKED STANDING TO ASSERT THE STATUTE OF LIMTATIONS IN DEFENSE OF APPELLANT'S CLAIM TO DECLARE THE NULLITY OF THE FORGED DEED ............. 12 CONCLUSION ............................................................................ 14 APPENDIX (Excerpts from B1iefto Appellate Division, Second Department) .. 16 Table of Authorities CPLR 213(8) ............................................................................... 3, 5 CPLR 321 l(a)(5) ............................................................................. 5 CPLR 205(a) .............................................................................. 5, 12 Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18, 882 N.E.2d 875 (2008) ........................................................................................................ 2, 7, 10, 11 Symbol Technologies, Inc. v. Deloitte & Tonche, LLP, 69 A.D.3d 191, 888 N.Y.S.2d 538 (2d Dept. 2009) ........................................................ 6 Marden v. Dorothy, 160 N.Y. 39 (1899) ........................................... 7, 8, 11 Wu v. Wu, 288 A.D.2d 104, 733 N.Y.S.2d 45 (1'' Dept. 2001) ..................... 7, 8 Karan v. Hoskins, 22 A.D.3d 638, 803 N.Y.S.2d 666 (2d Dept. 2005) ............... 7 Kraker v. Roll, 100 A.D.2d 424, 474 N.Y.S.2d 527 (2d Dept. 1984) ................. 8 Rosen v. Rosen, 243 A.D.2d 618, 663 N.Y.S.2d 228 (2d Dept. 1997) ................ 8 In re Estate ofRothko, 43 N.Y.2d 305, 324, 401N.Y.S.2d449, 457 (1977) ..... 8, 9 Diocese of Buffalo v McCarthy, 91A.D.2d213, 458 N.Y.S.2d 764 (4'1i Dept. 1983) ............................................................................... 9 3636 Greystone Owners, Inc. v. Greystone Building Co., 51A.D.3d461, 857 N.Y.S.2d 121, 122 (1st Dept. 2008) .................................................. 10 Centro Empresarial Cempresa S.A. v. America Movil, S.A.B., 2011 NY Slip Op 4720, 2011 N.Y. LEXIS 1383 (Court of Appeals, July 7, 2011) ..................... 11 Peny v. Williams, 40 Misc. 57, 81N.Y.S.204 (Sup. Ct. Tompkins Co. 1903) .... 13 Nash v. Duroseau, 39 A.D.3d 719, 835 N.Y.S.2d 611 (2d Dept. 2007) ............. 13 ii 527-9 Lenox Ave. Realty Com. v. Ninth Street Associates, 200 A.D.2d 531, 606 N.Y.S.2d 699 (1 ''Dept. 1994) ..................................................... 13 County of Tioga v. Solid Waste Industries, Inc., 178 A.D.2d 873, 577 N.Y.S.2d 922 (3d Dept. 1991) ..................................................... 13 iii PRELIMINARY STATEMENT Plaintiff-Appellant ("Appellant") Dorothy M. Faison, as administratrix of the Estate of Percy L. Gogins, sued in Supreme Comi, Kings County, for a declaration that a deed purporting to convey her decedent's interest in a house is void for forgery, and that a mmigage subsequently made by the deed's grantee in favor of Defendant-Respondent Bank of America, N.A. ("Respondent") is likewise void. Appellant now appeals from parts of a decision and order of the Appellate Division, Second Depaiiment, dated May 29, 2013 (the "Order") (A. 3-4). The Order affinned an order of Supreme Court (A. 5-6) which had: (i) granted Respondent's post-Answer motion to dismiss the Complaint under the six-year limitation applicable to fraud actions; and (ii) denied Appellai1t's cross-motion to dismiss Respondent's statute of limitations affirmative defense. On this appeal, Appellant asks the Court to reverse the Order and to rule that: (i) a deed to real property, void from inception for forgery, cannot become effective against the tn1e owner of the property, through the mere passage of time; and (ii) therefore, the statute of limitations cannot bar an action to declare the nullity of a forged deed. I As demonstrated below, application of the statute of limitations to actions to declare the nullity of forged deeds would conflict with: (i) the settled principle that forged deeds are not merely voidable, but are void and entirely without effect ab initio; and (ii) this Co mi's holding in Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18, 882 N.E.2d 875 (2008) that instruments void ab initio cannot be made valid by operation of the statute of limitations. Finally, assuming en arguendo the Court were to rule an action to declare the nullity of a forged deed may nevertheless be subject to defense under the statute of limitations, Appellant also asks that the Comi hold the defense is personal to the deed's grantee and, where not asse1ied by the grantee, may not be raised by the grantee's mortgagee. Finality and Jurisdiction: The Second Depmiment's Order affirmed the dismissal of all claims against Respondent and therefore was final as to Respondent under the doctrine of pm·ty finality. On Appellant's motion (motion no. 2014-58) , this Comi grantee! leave to appeal by order elated Ap1il 8, 2014 (A. 1). Preservation of Issues: The issues presented on this appeal were preserved below. See Addendum [Appellant's B1ief to Second Depmiment, pp. 6-7, 13-14]). 2 QUESTIONS PRESENTED 1. Did the Second Department err in holding that Appellant's claims to declare the nullity of a forged deed, and of a mmigage given to Respondent by the forged deed's grantee, were subject to the six-year stah1te of limitations applicable to fraud claims (CPLR 213[8])? Proposed detennination: Affinnative. 2. Assuming en arguendo the Second Department was correct in holding that the statute of limitations may bar an action to declare the nullity of a forged deed, did it neve1iheless err in holding the defense was not personal to the deed's grantee, and was properly raised by Respondent, the mmigagee under a mmigage subsequently made years later by the grantee? Proposed determination: Affinnative STATEMENT OF FACTS Appellant, as administratix, commenced this action with the filing of a Summons and a Complaint (the "Complaint") on August 24, 2010 (A. 7-13). The Complaint asserts two causes of action. The first cause of action (A. 9-10) alleges: (i) Appellant's decedent ("Decedent") and Decedent's sister, defendant Dorothy Lewis, were co- owners, as tenants-in common, of a piece of real prope1iy in Brooklyn, New York (the "Property"), each having an undivided 50% interest; (ii) Dorothy 3 Lewis conveyed her 50% interest to her daughter, defendant Tonya Lewis, by quitclaim deed (A. 20-23; the "May 21, 2000 Deed") , dated May 21, 2000 and recorded July 25, 2000; (iii) on February 14, 2001, Tonya Lewis recorded a "conection deed" (A. 24-27; the "Forged Deed"), dated December 14, 2001, purporting to correct the May 21, 2000 Deed by adding Decedent as an additional grantor, thereby conveying all of the fee interest in the Prope1iy to Tonya Lewis; and (iv) the Forged Deed is null and void for forgery, Decedent never having signed it. The second cause of action (A. 10-11), which incorporates the allegations of the first, alleges: (i) Tonya Lewis granted Respondent a mortgage (A. 28-35; the "Mmigage"), dated December 18, 2009, and recorded January 7, 2010, against the entire fee interest in the Prope1iy; (ii) at the time, Tonya Lewis had, at most, only a one-half fee interest in the Prope1iy; (iii) Tonya Lewis lacked authority to grant a mortgage against the entire fee interest in the Property. The Complaint requests judgment (A. 11 ): (i) on the first cause of action, declaring the Forged Deed null and void, directing Tonya Lewis to disgorge and. topa_yover toAppellant_half of the_rents, issues and profits of the Property, and awarding Appellant compensatory damages, punitive damages, and reasonable atton1eys' fees; and (ii) on the second cause of 4 action, declaiing the M011gage null and void, cancelling the Mortgage of record, and awarding, against Tonya Lewis, damages and reasonable att0111eys' fees incident to obtaining relief from the Mortgage. Respondent, together with co-defendant served an Answer (the "Answer") (A. 14-19), dated December 1, 2010, in which it denied knowledge or information sufficient to form a belief as to the tiuth of the allegations of the Complaint's first cause of action for relief from the Forged Deed. Respondent admitted the allegations conce111ing recording of the M011gage, and otherwise denied the allegations of the second cause of action for relief from the M011gage. The Answer asse11ed, as a fifteenth affirmative defense, that "Plaintiff is precluded by the applicable statute of limitations" (A. 18). Respondent moved by Notice of Motion dated July 11, 2011, for dismissal of the Complaint under CPLR § 321 l(a)(5) for violation of the six year statute of limitation applicable to fraud, CPLR § 213(8) (A. 51-52). The motion also sought dismissal under CPLR § 205(a) for Appellant's failure to commence this action within six months following the 2003 non-merits dismissal under CPLR 321 l(a)(3) and (7) of an action Appellant had brought on allegedly similar allegations (A. 48-51 ). 5 None of the other defendants moved below for dismissal of the Complaint or othe1wise joined Respondent's motion. Supreme Court granted "[d]efendants [sic] motion to dismiss on statute of limitations grounds," and dismissed the Complaint. It also denied, "as moot," a cross-motion by Appellant to dismiss the statute of limitations defense asse1ied in Respondent's Answer (A. 5). On appeal, the Second Depmiment affirmed those parts of the Supreme Comi Order which dismissed the Complaint as against Respondent and denied Appellant's cross-motion to st1ike Respondent's statute of limitations defense. ARGUMENT I. PLAINTIFF'S CAUSE OF ACTION TO DECLARE THE NULLITY OF THE FORGED DEED IS NOT SUBJECT TO THE STATUTE OF LIMITATIONS In its Order, the Second Depmiment held the six-year limitation for fraud actions (CPLR 213[8]) applicable to Appellant's action to declare the nullity of the Forged Deed1 and the Mortgage, and affirmed the dismissal of Appellant's Complaint as time-barred (A. 4).2 ' On Respondent's motion to dismiss under CPLR § 321 l(a)(5), the Complaint's allegations of forgery are accepted as true. Symbol Technologies, Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 195, 888 N.Y.S.2d 538, 541 (2d Dept. 2009) ("facts alleged in a complaint are 6 In giving effect to the Forged Deed, the Order is inconsistent with the long-settled p1inciple that a forged instrument is void and entirely without effect from inception. It is also in direct conflict with this Court's holding in Riverside Syndicate. Inc. v. Munroe, 10 N.Y.3d 18, 882 N.E.2d 875 (2008) that a statute of limitation can never operate to give effect to a void inst1ument by barring actions for a declaration of its nullity. Accordingly, this Court should reverse the Order, reinstate the Complaint against Respondent, and dismiss Respondent's fifteenth affirmative defense under the statute oflimitations. A. Void Ab Jnitio, the Forged Deed Was Incapable of Affecting Appellant's Rights in the Property, Regardless of Whether Appellant Ever Sought a Declaration of Its Nullity It has long been the law of this State that a forged instrument is not merely voidable; it is void ab initio -- entirely without legal effect from inception. See Marden v. Dorothy, 160 N.Y. 39, 50-51 (1899) (forged deed was void from inception and thus incapable of conveying any interest in subject land); Wu v. Wu, 288 A.D.2d 104, 105, 733 N.Y.S.2d 45, 46 (1st accepted as true on a motion to dismiss, are afforded a liberal interpretation, and are viewed in the light most favorable to the plaintiff'). 2 Finding Appellant lmew of the forgery by 2003, the Second Depaiiment also held Appellant could not avail herself of the alternate prong of CPLR 213(8) which permits commencement of a fraud action within two years of discovery of the fraud (A. 4). 7 Dept. 2001) ("[a] forged deed is void" and therefore cannot convey title to a bolla fide purchaser). Since a forged deed is void, it conveys no title, even to one who has given value for the prope1ty without notice of the forgery. Karan v. Hoskins, 22 A.D.3d 638, 639, 803 N.Y.S.2d 666, 667 (2d Dept. 2005) ("a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as such a deed is void and conveys no title"); Wu v. Wu, supra. In this respect, deeds void for forgery are distinguishable from deeds procured by fraudulent representations or promises, which are not void but merely voidable. Marden v. Dorothy, 160 N.Y. at 50; Kraker v. Roll, 100 A.D.2d 424, 474 N.Y.S.2d 527 (2d Dept. 1984) (distinguishing between void deeds created by forgery and voidable deeds induced by fraud); Rosen v. Rosen, 243 A.D.2d 618, 663 N.Y.S.2d 228 (2d Dept. 1997) (if induced by fraud, conveyances of property were voidable). Unlike a deed void for forgery, one which is merely voidable for fraud or on other ground is fully operative unless and until a paity with the power to avoid the rights and obligations created exercises that power. Cf In re Estate of Rothko, 43 N.Y.2d 305, 324, 401 N.Y.S.2d 449, 457 (1977) ('"A voidable contract is one where one or more parties thereto have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract; or by 8 ratification of the contract to extinguish the power of avoidance' [Restatement, Contracts, § 13]"); Diocese of Buffalo v. McCarthy, 91 A.D.2d 213, 218, 458 N.Y.S.2d 764, 767 (4th Dept. 1983) ("Contracts are held to be voidable when one of the parties has the power either to avoid or to validate the agreement and thus it may be, at least potentially, legally operative"). B. Judicial Action Is Not Required to Divest a Void Instrument of Legal Effect; Consequently, Application of the Statute of Limitation to Bar Actions to Declare the Nullity of Such Instruments Would Be Anomalous Since a deed void for forgery is entirely without legal consequence from inception, the true owner of property is not required to take legal action to avoid the rights, duties and interests it purports to create; where a deed is instead voidable for fraudulent inducement, the owner must affirmatively asse1i her claim or defense. Cf In re Estate of Rothko, supra ("in order to prevent the [voidable] contract from having its normal operation the claim or defense must in some manner be asserted"). As action is required to divest an operative but voidable instrument of legal effect, statutory limitations on the time in which a party must act to obtain judicial relief from the instrument are consistent with its legal character and make perfect sense. In contrast, since no action of any kind is required to deprive a void instrument oflegal consequence, the imposition of 9 temporal limitations on actions to declare forged instruments void would be irreconcilable with their nullity and with the persistence of the legal rights of the true owner in the subject property. C. The Second Depaiiment's Rationale for Application of the Fraud Statute of Limitations to Appellai1t's Forge1y Claims Was Flawed Actions like this one, which seek to declare the nullity of instruments void ab initio, as opposed to actions which seek relief with respect to instruments which are merely voidable, are not subject to statutes of limitation. This is so because, as this Court inst1ucted, a statute of limitation cam1ot make "valid through the mere passage of time" an instrument which was void at its inception. Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18, 24, 882 N.E.2d 875, 878 (2008) (claim for relief from a lease which was void from inception on public policy grounds could not be barred by the statute of limitation). Cf 3636 Greystone Owners, Inc. v. Greystone Building Co., 51 A.D.3d 461, 857 N.Y.S.2d 121, 122 (1" Dept. 2008) (distinguishing Riverside; in dispute over ownership of parking spaces, where defendant's title was not based on a void inst1ument, plaintiff's contractual claim of ownership was subject to the statute of limitation). The Second Department's application of the fraud limitation to Appellai1t's forgery claims, and the cases on which it relied, turned on the loose convention of refening to forgery as a species of fraud, an apparent 10 recognition that both wrongs are grounded in dishonesty. Compare Centro Empresarial Cempresa S.A. v. America MoviL S.A.B., 2011 NY Slip Op 4720 * 5, 2011 N.Y. LEXIS 1383 **9 (Court of Appeals, July 7, 2011) (fraudulent inducement requires a knowingly false misrepresentation of mate1ial fact on which plaintiff relies to its injmy) with Marden v. Dorothy, supra, 160 N.Y. at 53 (1899) (forge1y is the false making or alteration of an inst1ument with intent to defraud). Convenient as the convention may be in some other contexts, when it comes to statute of limitation application, the overbroad classification of forgery as fraud allows forged instruments to acquire effect with time. This result is antagonistic to the long-settled rule, discussed above, that forged instruments lack any capacity to affect the legal relations of the nained parties. It also violates the rule enunciated in Riverside Syndicate, Inc. that statutes of limitation may never operate to give legal effect to a void . 3 mstrument. ' The labeling convention also ignores other elemental distinctions between fraud and forge1y. For example, in fraud actions, the plaintiff is almost always the direct target of the defendant's deception, on which she has relied to her injmy. In actions to declare the nullity of a forged deed, however, the plaintiff is generally the tlue owner of the subject property (or the legal representative of his or her estate) and the last person to whom the forger would ever have displayed his coni.1pt handiwork. Moreover, in the absence of severe cognitive dysfunction, the tn1e owner will never be deceived by, or 11 The Second Depmiment's application of the fraud statute of limitations to actions to declare the nullity of forged instruments was thus doctrinally unsound and logically flawed. Accordingly, the Order should be reversed.4 II. RESPONDENT LACKED STANDING TO ASSERT THE STATUTE OF LIMTATIONS IN DEFENSE OF APPELLANT'S CLAIM TO DECLARE THE NULLITY OF THE FORGED DEED Respondent asse1ied the affinnative defense of statute of limitations, not in defense of the Complaint's second cause of action to vacate its rely upon, the forgery. For these reasons, while the delivery of a forged deed may well work a fraud on its grantee, no fraud, in the core sense of the term, is perpetrated on the tiue owner of the property. 4 Section 205(a) of the CPLR was cited by Respondent's Notice of Motion (A. 51-52) as an alternative ground for dismissal. The argument made in the court of original instance, but wisely abandoned on appeal to the Second Department, was that § 205(a) required Appellant to commence this action within six months of the 2003 non-me1its dismissal of Gogins v. Lewis (A. 48-50). Contrary to Respondent's tmiured reading, however, section 205(a) does not impose a shortened limitation on claims asserted in an earlier action dismissed on non-merits grounds. Instead, the section se1ves only to preserve a claim which would, in its absence, have become time-baITed due to the expiration of an otherwise applicable statute of limitation dming the pendency of a dismissed action. See NY CLS CPLR § 205 (2011) (LEXIS), Adviso1y Committee Notes (section "would not reduce a limitation otherwise applicable"). But, even if Respondent's reading of§ 205(a) were colTect, and it is not, the section would be of no avail to Respondent, since Appellant's action to declare the nullity of the Forged Deed is not subject to operation of the statute oflimitations, as demonstrated above. 12 Mortgage, but in defense of the first cause of action against defendant Tonya Lewis to vacate the Forged Deed, to which Respondent was never a party. In an action over a disputed instrument, however, a defense under the statute of limitation is personal to the parties to the instrument. See Perry v. Williams, 40 Misc. 57, 81 N.Y.S. 204 (Sup. Ct. Tompkins Co. 1903) (in action by a first mortgagee to reform a discharge which erroneously released all rather than part of his mortgage, defendant second mortgagee could not raise statute of limitations since the defense was personal to the mortgagor under the first mortgage). Strangers to the instn1ment lack standing to assert personal defenses, like the stah1te of limitation. Cf, Nash v. Duroseau, 39 A.D.3d 719; 835 N.Y.S.2d 611 (2d Dept. 2007) (foreclosure defendants who were not parties to mortgage lacked standing to assert mortgage was invalid for lack of consideration); 527-9 Lenox Ave. Realty Corp. v. Ninth Street Associates, 200 A.D.2d 531, 606 N.Y.S.2d 699 (1st Dept. 1994) (where appealing defendants in mortgage foreclosure action were not paiiies to the underlying conveyance, they lacked standing to attack the conveyance for lack of consideration); County of Tioga v. Solid Waste Industries, Inc., 178 A.D.2d 873, 577 N.Y.S.2d 922 (3d Dept. 1991) (since defendant, joined in foreclosure action as a creditor of mmigagor, was not a party to the 13 mortgage, it lacked standing to raise defense that mortgage was unconscionable). Even assuming for argument's sake, a statute of limitations defense to the first cause of action were available to the grantee of the Forged Deed, Respondent would lack standing to assert it.5 Accordingly, this Court should reverse the lower comi's grant of Respondent's motion to dismiss the Complaint on statute of limitation grounds, and its denial of Appellant's motion to strike Respondent's statute of limitation defenses. CONCLUSION For the foregoing reasons, the Order on appeal should be reversed, Appellant's Complaint reinstated, and the fifteenth affirmative defense of the Respondent's Answer, asserting the statute of limitations, should be dismissed. Dated: June 5, 2014 'Any contention by Respondent that the Complaint's second cause of action, to vacate their Mortgage, is time-baJTed would necessarily fail, as it is undisputed the Mortgage was made less than one year before commencement of this action (A. 7, 28-35). 14 GORDON & HAFFNER, LLP Attorneys for Plaintiff-Appellant .. · ,.···,;'/' / I<) (/l havid Gnhlon, Esq. 480 Ma~11cd-oneck A venue Hanison, New York 10528 (914) 381-4848 x. 302 15 ADDENDUM ExceqJts from Appellant's Brief to Appellate Division, Second Depart111ent To be Argued by: DAVID GORDON Time Requested: 15 lifinu.tes Docket No. 20111-10613 DOROTHYM. FAISON, asAclministratrixofthe Estate of PERCY LEE GOGINS, JR., deceased, Plaintiff-Appellant, - against - TONYA LEWIS, a/k/a TONYA TAYLOR, alkla TONYA LEWIS TAYLOR, DOROTHY LEWIS, BANK OF AMERICA, N.A. and MORTGAGE ELECTRONIC.REGISTRATION SYSTEMS, INC., Defendants-Respondents. BRIEF FOR PLllil":r'I'IlFF-APPJELLAI'\fT OfCotmsel: DAVID GORDON GORDON & HAFFNER, I..LJP A.ttomeys for Plaintiff-Appellant 480 Mamaroneck Avenue Harrison, New York 10528 (914) 381-4848 Kings County Clerk's Index No. 21046/10 Appeal Press - (91,1) 761-jl100 (212) 267-6602 (15727) Granting "[ d]efenda.nts [sic] motion to dismiss on statute of limitations grounds," the court below dismissed the Complaint. It also denied, "as moot," Appellant's cross-motion to dismiss BANA-MERS statute of limitation affirmative defense (R. 6). ARGUMENT I. PLAINTIFF'S CAUSE OF ACTION TO DECLARE THE NULLITY OF THE FORGED DEED IS NOT SUBJECT TO THE STATUTE OF LllYlITATION In dismissing the Complaint, the court below accepted BANA's argument that the six year statute of limitation for fraud actions applies to an action seeking to declare the nullity of a forged deed (R. 6, 12-15). The argument was based on this Court's application of the six year statute to bar claims for relief from forged instruments in Piedra v. Vanover, 174 A.D.2d 191, 579 N.Y.S.2d 675 (2d Dept. 1991), Shannon v. Gordon, 249 A.D.2d 291, 670 N.Y.S.2d 887 (2d Dept. 1998), and Coombs v. Jervier, 74 A.D.3d 724, 906 N.Y.S.2d 267 (2d Dept. 2010). As discussed below, the rulings in these cases are inconsistent with tl1e settled principle tlmt a forged instrument is void and entirely without effect from inception. They are also in direct conflict wifu the Court of Appeals' holding in Riverside Syndicate, Inc. v. Mumoe, 10 N.Y.3d 18, 882 N.E.2d 875 (2008) that a statute of limitation can never operate to give effect 6 lo a void instrument by baning actions for a declaration of its nullity. Accordingly, this Court should overturn the decisional rule of its earlier cases, in favor of the rule that the statute of limitation can never operate to bar a claim to declare the nullity of a forged instrument. 1 A. The Forged Deed Is Void Ab Jnitio It has long been settled that a forged instrument 1s not merely voidable; it is void ab initio -- entirely without legal effect from inception. Marden v. Dorothy, 160 N.Y. 39, 50-51 (1899) (forged deed was void from inception and thus incapable of conveying any interest in subject land). See Wu v. Wu 288 A.D.2d 104, 105, 733 N.Y.S.2d 45, 46 (l" Dept. 2001) ("[a] forged deed is void"). This Court is well familiar with the rule. For example, in First National Bank of Nevada v. Williams, 74 A.D.3d 740, 904 N.Y.S.2d 707 1 BANA also contended below, without benefit of legal authority, that Appellant was required by CPLR § 205( a) to commence this action within six months of the non-merits dismissal of tl1e 2003 Action (R. 14-15). Contrary to BANA's tortured reading, section 205(a) does not impose any limitation period on claims which were subject to a prior non-merits termination. TI1e section, instead, serves only to extend limitations on claims which would, in its absence, have become time barred during pendency of tl1e tenninated action. See NY CLS CPLR § 205 (2011) (LEXIS), Adviso1y Committee Notes (section "would not reduce a limitation otherwise applicable''). The section is, in any case irrelevant here, because, as demonstrated in this brief, Appellant's claim to declare tl1e nullity of tl1e Forged Deed is not subject to defense under any statute of limitation. 7 tbrough the passage of time. This result is antagonistic to the fundamental principle that an instrument void from inception lacks capacity ever to alter legal rights of tbe parties. It also violates the rule enunciated in Riverside Svndicate. Inc. tbat statutes of limitation may never operate to give legal effect to a void instrument. 3 Accordingly, this Court should reverse the lower court's dismissal of the Complaint on statute of limitation grounds, and its denial of Appellant's motion to strike BANA's and MERS's statute oflimitation defenses. II. BANA AND MERS LACK. STANDING TO ASSERT THE STATUTE OF LIMTATION IN DEFENSE OF APPELLANT'S CLAIM TO DECLARE THE NULLITY OF THE FORGED DEED BANA and MERS asserted the affirmative defense of statute of limitation, not in defense of the Complaint's second cause of action to vacate their Mmigage, but in defense of the frrst cause of action to vacate Tonya Lewis's Forged Deed. ' The labeling convention also ignores other elemental distinctions between fraud and forgery. For example, in fraud actions, the plaintiff is ah110st always the target of the deception. However, in actions to declare the nullity of a forged deed, the plaintiff is generally the true owner of the subject property (or his or her representative) m1d the last person to whom the forger would ever have displayed his cmrupt handiwork. Moreover, in the absence of severe cognitive dysfunction, the true owner is the one person who cannot be deceived by the forgery into believing he or she has conveyed the subject prope1iy. Indeed, the true owner may never learn of the forgery, which may even take place after his or her death. See, e.g., First National Bmlic of Nevada v. Gay, 74 A.D.3d 740, 904 N.Y.S.2d 707 (2d Dept. 2010) (forged signature of putative principal on power of attorney made after her death). 13 However, in an action over a disputed instrument, a defense under the stanrte of limitation is personal to the parties to the instrument. See Peny v . . ·Williams, 40 Misc. 57, 81 N.Y.S. 204 (Sup. Ct. Tompkins Co. 1903) (in action by a mo1igagee to refom1 the discharge of his first m01igage which eIToneously released all rather than pati of his mortgage, mortgagee under a second mmigage could not raise statute of limitations since the defense was personal to the mortgagor under the first mmigage ). Strangers to the instrument lack standing to assert personal defenses, like the statute of limitation. See, e.g., Nash v. Duroseau, 39 A.DJd 719; 835 N.Y.S.2d 611 (2d Dept. 2007) (foreclosure defendants who were not parties to mmigage lacked standing to assert mortgage was invalid for lack of consideration); 527-9 Lenox Ave. Realty Corp. v. Ninth Street Associates, 200 A.D.2d 531, 606 N.Y.S.2d 699 (1'' Dept. 1994) (where appealing defendants in mortgage foreclosure action were not parties to the underlying conveyance, they lacked standing to attack the conveyance for lack of consideration); County ofTiog:a v. Solid Waste Industries, Inc., 178 A.D.2d 873, 577 N.Y.S.2d 922 (3d Dept. 1991) (since defendant, joined in foreclosure action as a creditor of mortgagor, was not a pmiy to the mortgage, it lacked standing to raise defense that mortgage was unconscionable). 14 AFFIRMA'flON OF SERVICE DA YID GORDON, an attorney admitted to practice in the courts of the State of New York, affirms under penalty of perjury, pursuant to CPR 2106: On June 5, 2014, I served the within Appellant's Brief by placing three true and complete copies of the same in sealed wrappers, with first class postage prepaid thereon, and placing them in the custody of the United States Postal Service at an official depository thereof within the State of New York, addressed to the last known address of the following addressees: L. Irene Pangilinan, Esq. Fidelity National Law Group Attorneys for Defendant Bank of America, N.A. 350 Fifth Avenue, Suite 3000 New York, New York 10118 Akerman Senterfitt LLP Attorneys for Defendant Mortgage Electronic Registration System, Inc. 666 Fifth Avenue, 20°1 Floor New York, New York 10103 Tonya Lewis a/k/a Tonya Taylor a/k/a Tonya Lewis Taylor Pro Se 1120 Lenox Road Brooklyn, New York 11212 Dorothy Lewis Pro Se 1120 Lenox Road Brooklyn, New York 11212 Dated: June 5, 2014