Supreme Court, Appellate Division, Third Department, New York.

TICOR TITLE GUARANTEE COMPANY et al., Respondents,
v.
E.F.D. CAPITAL GROUP INC. et al., Defendants,
and
Frank R. West, as Trustee for Frank R. West, Appellant.


Dec. 29, 1994.


 Title insurer brought action against alleged mortgagors, mortgagee, and 
assignee to invalidate mortgage based on forgeries.   The Supreme Court, 
Hamilton County, Best, J., entered summary judgment in favor of insurer. Appeal 
was taken.   The Supreme Court, Appellate Division, Mercure, J., held that 
forgeries invalidating policy were established.

 Affirmed.


West Headnotes

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Handwritten revisions of deposition by mortgagee's president established that he 
forged mortgagor's signatures on mortgage, and, thus, title policy was void ab 
initio, even though president, through apparent oversight, failed to expressly 
revise all prior denials of guilt in deposition;  president's acknowledgement of 
forgeries was clear and unequivocal and was against pecuniary and penal 
interest.
 **128 Coupe, Siegel, Hester, Stephens & Kahler (Samuel D. Hester, of counsel), 
Utica, for appellant.

 Kirschenbaum & Kirschenbaum (Ira Levine, of counsel), Garden City, for 
respondents.


 Before CARDONA, P.J., and MERCURE, WHITE, CASEY and PETERS, JJ.



 *841 MERCURE, Justice.

 Appeal from an order of the Supreme Court (Best, J.), entered October 21, 1993 
in Hamilton County, which granted plaintiffs' motion for summary judgment and 
made a declaration in their favor.

 It is undisputed that if defendant Frank Deutsch, president and principal 
stockholder of defendant E.F.D. Capital Group Inc. (hereinafter EFD), forged the 
signatures of defendants Denise A. Turturo and Frank Turturo to a mortgage 
granted to EFD and subsequently assigned to defendant Frank R. West, then 
plaintiffs are entitled to judgment declaring void ab initio a title insurance 
policy issued by plaintiff Ticor Title Guarantee Company, which insured the lien 
of the mortgage.   At a September 25, 1987 deposition, Deutsch (at the time an 
inmate at a New Mexico correctional facility) repeatedly testified that he had 
not forged the Turturos' signatures or the acknowledgment on the instrument.   
However, after he was furnished with a typed transcript of his testimony, 
Deutsch appended four handwritten revisions wherein he unequivocally 
acknowledged that he had forged the signatures of the Turturos and of the 
purported Notary Public who took the acknowledgment.   Through apparent 
oversight, however, Deutsch failed to expressly revise all of the prior denials 
of guilt.

 We are not persuaded by West's contention that the resulting "inconsistency" 
left an unresolved factual issue so as to preclude a grant of summary judgment 
in favor of plaintiffs.   The question of Deutsch's forgery is not subject to 
varying recollections, gradations or interpretations (cf., Wilder v. Rensselaer 
Polytechnic Inst., 175 A.D.2d 534, 535, 572 N.Y.S.2d 795;  Shea v. Johnson, 101 
A.D.2d 1018, 476 N.Y.S.2d 706).   To the contrary, we view Deutsch's clear and 
unequivocal acknowledgment, stated against his pecuniary and penal interest, 
that he committed the forgery as susceptible to only one inference, thereby 
satisfying plaintiffs' burden *842 of making a prima facie showing of 
entitlement to judgment as a matter of law (see, Winegrad v. New York Univ. Med. 
Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   West having 
failed to oppose the motion with **129 evidentiary proof in admissible form 
sufficient to require a trial of material questions of fact or to demonstrate an 
acceptable excuse for his failure to do so, Supreme Court properly granted 
plaintiffs' motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 
N.Y.S.2d 595, 404 N.E.2d 718).

 ORDERED that the order is affirmed, with costs.


 CARDONA, P.J., and WHITE, CASEY and PETERS, JJ., concur.

621 N.Y.S.2d 128, 210 A.D.2d 841

END OF DOCUMENT