                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    519817
________________________________

FRANCISCO MAZO et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

MANUEL MAZO JR. et al.,
                    Respondents.
________________________________


Calendar Date:    September 14, 2015

Before:    Egan Jr., J.P., Rose, Devine and Clark, JJ.

                              __________


      Sussman & Watkins, Goshen (Michael H. Sussman of counsel),
for appellants.

      Kalter, Kaplan, Zeiger & Forman, Woodbourne (Ivan Kalter of
counsel), for respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered October 3, 2013 in Ulster County, which, among other
things, granted defendants' motion for summary judgment
dismissing the complaint.

      The parties to this action are siblings who have been
embroiled in a dispute over two parcels of real property in
Ulster County since 2002, when the parties' mother purportedly
deeded the parcels to defendant Manuel Mazo Jr. After plaintiffs
failed in their attempt to purchase the parcels from Manuel Mazo,
plaintiff Francisco Mazo commenced a civil action against Manuel
Mazo in Supreme Court in 2004 (hereinafter the 2004 action) and
later initiated a criminal action against Manuel Mazo in Spain in
2006 (hereinafter the Spanish criminal action).
                              -2-                519817

      In 2011, plaintiffs commenced this action alleging that the
2002 deed is forged, fraudulent and void.1 After joinder of
issue, defendants moved for, among other things, summary judgment
dismissing the complaint on the ground that the action is barred
by the doctrine of collateral estoppel due to the dismissal of
the Spanish criminal action, which also had accused Manuel Mazo
of forging the mother's signature on the deed. Defendants'
motion argued further that plaintiffs' action is barred by the
statute of limitations and that Francisco Mazo failed to satisfy
certain terms of a stipulation of settlement to resolve the 2004
action, thereby triggering a default provision which, among other
things, prevents him from maintaining this action. Ultimately,
Supreme Court awarded summary judgment to defendants dismissing
plaintiffs' complaint as barred by both collateral estoppel and
the statute of limitations. In addition, the court found that
the stipulation's default provision expressly required dismissal
of the 2004 action, which it so ordered. Plaintiffs now appeal.

      We agree with plaintiffs that they are not collaterally
estopped from maintaining this action. It is well established
that "dismissal of a criminal charge . . . does not generally
constitute collateral estoppel in relation to a civil action
because of the difference in the burden of proof to establish the
factual issues" (Kalra v Kalra, 149 AD2d 409, 410 [1989]; cf.
Matter of Arnold v Goosby, 186 AD2d 1037, 1037 [1992]). Indeed,
the Spanish court dismissed the Spanish criminal action "without
prejudice," expressly permitting the matter to "be referred to
civil jurisdiction." Inasmuch as this dismissal of the Spanish
criminal action did not conclusively establish whether the
signature was forged, and did not preclude plaintiffs from
commencing a similar civil action, defendants have failed to
satisfy their burden of proving "that this identical issue was
necessarily decided in the [prior action] and is conclusive in
the [present] action" (D'Arata v New York Cent. Mut. Fire Ins.
Co., 76 NY2d 659, 666 [1990]; see Kaufman v Eli Lilly & Co., 65


    1
        At oral argument, plaintiffs conceded that their claim
rests entirely upon their allegations that the mother's signature
on the deed was forged. They agreed that if there is no forgery,
there is no fraud.
                              -3-                519817

NY2d 449, 455-456 [1985]).

      Nor should plaintiffs' action have been deemed time-barred
by the statute of limitations. While the limitations period for
a cause of action sounding in fraud is the greater of six years
after the cause of action accrued or two years after it could
have been discovered with reasonable diligence (see CPLR 213
[8]), the Court of Appeals has recently held that this period
does not apply when the particular species of fraud alleged is
the forgery of a deed. The Court found that, unlike other fraud-
based causes of action, "a claim against a forged deed is not
subject to a statute of limitations defense" because of "the
clarity of our law that a forged deed is void ab initio, and that
it is a document without legal capacity to have any effect on
ownership rights" (Faison v Lewis, 25 NY3d 220, 226 [2015]).

      Finally, plaintiffs argue that the 2004 action should not
have been dismissed based on the language of the default clause
in the stipulation of settlement. "Like any contract, . . . a
stipulation [of settlement] will be enforced so long as it is
sufficiently definite in its material terms so as to enable a
court 'to determine what in fact the parties have agreed to'"
(Samonek v Pratt, 112 AD3d 1044, 1045 [2013], quoting Matter of
166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91
[1991]). Here, the stipulation unambiguously provides that, in
order to purchase the parcel that Manuel Mazo agreed to sell,
Francisco Mazo was required to close title within 120 days, with
"time of the essence." It further provides that if Francisco
Mazo failed to satisfy this condition, he would be required to
recognize Manuel Mazo as the "legal and equitable owner" of the
parcel, and would "no longer have any right in and to said
premises or the right to purchase same and [the 2004] action is
deemed to be discontinued on the merits and with prejudice."
Plaintiffs concede that Francisco Mazo did not close on the
parcel within 120 days. Nevertheless, they attempt to excuse his
clear failure to perform by claiming that Manuel Mazo also
breached the stipulation by, among other things, never attempting
to schedule a closing. However, we view these claims as
"conclusory, unsupported allegations that are at odds with the
factual evidence in the record" and, as such, are insufficient to
raise a triable issue of fact (Collins v Yodle, Inc., 105 AD3d
                              -4-                519817

1178, 1179 [2013], lv denied 21 NY3d 860 [2013]; see 2 N. St.
Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1395 [2009], lv
denied 14 NY3d 706 [2010]). Accordingly, we agree that Supreme
Court properly dismissed the 2004 action as the stipulation
expressly requires.

      Nevertheless, we decline defendants' request to further
interpret the language of the stipulation's default clause as
requiring dismissal of the present action. We note that
plaintiff Joseph Mazo was not a party to the stipulation or the
2004 action, and he is not otherwise barred from maintaining this
action. As for Francisco Mazo, defendants argue that the default
clause states that he "no longer ha[s] any right in and to said
premises." However, reading the document as a whole, it is
unclear whether the parties intended that language to extinguish
all of Francisco Mazo's rights to the property – including his
ability to maintain the present action – or only those purported
rights he asserted in the 2004 action, which did not include a
forgery claim. For example, the stipulation originally required
the parties to exchange general releases upon closing, but the
parties amended that provision, agreeing to grant only
"[r]eleases specific to claims in [the 2004] action." The
parties also agreed to delete a provision that would have
required Francisco Mazo to formally recognize that the deed was
properly executed and not a forgery. These apparent
contradictions lead us to conclude that it is also inappropriate,
at this stage of the proceedings, to preclude Francisco Mazo from
maintaining the forgery cause of action, inasmuch as a
"'determination of the intent of the parties depends on the
credibility of extrinsic evidence or on a choice among reasonable
inferences to be drawn from extrinsic evidence'" (Dudick v
Gulyas, 4 AD3d 604, 606 [2004], quoting Hartford Acc. & Indem.
Co. v Wesolowski, 33 NY2d 169, 172 [1973]).

      We have examined plaintiffs' remaining arguments and find
them to be without merit.

     Egan Jr., J.P., Devine and Clark, JJ., concur.
                              -5-                  519817

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendants' motion
for summary judgment dismissing plaintiffs' forgery cause of
action; motion denied to that extent; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
