GintyvAmericanFundsServiceCompany

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 30, 2014 517645
________________________________

BRIAN GINTY et al.,
Respondents,
v

AMERICAN FUNDS SERVICE
COMPANY,
Defendant, MEMORANDUM AND ORDER
and

JULIA A. GINTY et al.,
Appellants.
________________________________

Calendar Date: September 8, 2014

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

__________

Dennis B. Schlenker, Albany, for appellants.

Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston (John G.
Rusk of counsel), for respondents.

__________

Rose, J.

Appeal from an order of the Supreme Court (Work, J.),
entered October 7, 2013 in Ulster County, which granted
plaintiffs' motion for summary judgment.

Plaintiffs, the sons of Francis Ginty (hereinafter
decedent), commenced this action seeking to prevent defendant
American Funds Service Company from disbursing funds in
decedent's IRA to defendant Julia A. Ginty, decedent's sister, on
the ground that decedent's signature on the form designating her
as the beneficiary was a forgery and thus did not comply with
 -2- 517645

EPTL 13-3.2 (e). After joinder of issue and discovery, Supreme
Court found as a matter of law that decedent was not the person
who signed the designation of beneficiary form and granted
plaintiffs' motion for summary judgment. Defendant Kevin Ginty,
decedent's brother, and Julia Ginty (hereinafter collectively
referred to as defendants) appeal, contending that issues of fact
exist with respect to whether decedent's signature is a forgery.

In support of their motion, plaintiffs established that the
IRA account was originally created by Kevin Ginty, who owned and
operated a financial services firm at which Julia Ginty worked
part time. Defendants both testified at their examinations
before trial that they were familiar with decedent's signature,
and both unequivocally testified that the signature in question
was not decedent's. In addition, plaintiffs submitted an
affidavit and report from a handwriting expert who conclusively
opined that the signature was not made by decedent. This proof
established the absence of any material issues of fact.

Although Kevin Ginty submitted an affidavit in opposition
to the motion claiming that he could no longer be sure whether
the signature in question was made by decedent, a party may not
raise triable issues of fact in opposition to a motion for
summary judgment by submitting a self-serving affidavit that
contradicts prior sworn testimony (see Decker v Schildt, 100 AD3d
1339, 1341 n [2012]; Benamati v McSkimming, 8 AD3d 815, 817
[2004]; Brock Enters. v Dunham's Bay Boat Co., 292 AD2d 681, 683
[2002]). Defendants also submitted the affidavit of a
handwriting expert, but she merely questioned whether the opinion
of plaintiffs' expert was based on properly authenticated
documents. She did not address the central question of whether
decedent's signature on the application was authentic. Moreover,
defendants did not come forward with any affirmative proof that
decedent signed the form, relying only on Kevin Ginty's
unsubstantiated claim that, because he signed a guarantee of
signature form, decedent's signature must have been genuine. We
agree with Supreme Court that defendants' evidence was
insufficient to raise a triable issue of fact and, accordingly,
summary judgment was properly granted (see State of New York v
Passalacqua, 19 AD3d 786, 789-790 [2005]; Eggleson v Trustees of
Gen. Elec. Pension Trust, 238 AD2d 871, 872 [1997]; Ticor Tit.
 -3- 517645

Guar. Co. v E.F.D. Capital Group, 210 AD2d 841, 842 [1994], lv
denied 85 NY2d 809 [1995]).

McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger
Clerk of the Court