NYCTL 1998-2 Trust v Santiago
2006 NY Slip Op 04992 [30 AD3d 572]
Decided on June 20, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 20, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
THOMAS A. ADAMS
DANIEL F. LUCIANO
STEVEN W. FISHER, JJ.
2005-10536 DECISION & ORDER
2006-00817

[*1]NYCTL 1998-2 Trust, etc., et al., respondents,

v

Robert Santiago, et al., defendants; 1516 Schenectady, LLC, a/a/o Robert Santiago, nonparty-appellant. (Index No. 17131/01)





Wenig Saltiel & Greene, LLP, Brooklyn, N.Y. (Ira Greene of
counsel), for appellant.

In an action to foreclose a mortgage, 1516 Schenectady, LLC, a/a/o Robert Santiago, appeals (1) from an order of the Supreme Court, Queens County (Golia, J.), dated August 10, 2004, which denied, with leave to renew, that branch of its motion which was to distribute to it surplus funds in the sum of $158,000.28, and (2), as limited by its brief, from so much of an order of the same court dated February 3, 2005, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated August 10, 2004, is dismissed, without costs or disbursements, as that order was superseded by the order dated February 3, 2005, made upon reargument; and it is further,

ORDERED that the order dated February 3, 2005, is affirmed insofar as appealed from, without costs or disbursements.

Following the sale of the subject property pursuant to a judgment of foreclosure dated July 19, 2003, the nonparty-appellant 1516 Schenectady, LLC, a/a/o Robert Santiago, sought distribution of the surplus funds. In support of its motion, the appellant tendered an unauthenticated copy of what purported to be an assignment of rights executed by the former owner of the subject premises, the defendant Robert Santiago. However, the appellant made no attempt to authenticate the purported assignment, despite being afforded an opportunity to do so. The court denied the motion, with leave to renew upon proper proof of the appellant's claim of right. We affirm. [*2]

A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established (see Sloninski v Weston, 232 AD2d 913, 914; see generally 58 NY Jur 2d, Evidence and Witnesses § 460). Contrary to the appellant's contention, the Supreme Court did not err in requiring that the appellant's motion be supported by legally competent evidence. Accordingly, the motion was properly denied.

In light of our determination, we do not reach the appellant's remaining contentions.
FLORIO, J.P., ADAMS, LUCIANO and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court