Roth v. Speilman

Judgment, Supreme Court, New York County (Joan A. Madden, J.), entered June 15, 2004, upon a jury verdict, dismissing the complaint and bringing up for review an order, same court and Justice, entered on or about October 15, 2003, which denied plaintiffs motion to set aside the verdict, unanimously affirmed, without costs. Appeal from the October 15, 2003 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment. The court properly concluded that defendants’ certification of 384 financial statements to the United States Department of Housing and Urban Development, which included the alleged loan purportedly owed to plaintiffs decedent, merely created an issue of fact as to the existence of the loan and defendants’ obligation to pay (see Matter of Heisler v Gingras, 90 NY2d 682, 688 [1997]; Cognetta v Valencia Devs., Inc., 8 AD3d 318, 320 [2004]; Knoll v Datek Sec. Corp., 2 AD3d 594, 595 [2003]; Skiadas v Terovolas, 271 AD2d 521 [2000]; Estate of Vengroski v Garden Inn, 114 AD2d 927 [1985]). We reject plaintiffs theory of “estoppel by certification,” which would preclude defendants as matter of law from disputing the validity of the alleged loan (see Heisler, 90 NY2d at 688). Concur—Sullivan, J.P., Nardelli, Catterson, McGuire and Malone, JJ.