A.B.J.M. Corp. v. Prudenti , 704 N.Y.S.2d 280 ( 2000 )

—In an action to recover the proceeds of a loan, the defendant Anthony Prudenti appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated March 30, 1999, which denied his motion to vacate a judgment by confession entered October 11, 1990, without prejudice to his right to commence a plenary action to set aside the affidavit of confession of judgment and to vacate the judgment entered thereon.

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County for a hearing on the issue of whether the appellant’s signature on the affidavit of confession of judgment was a forgery, and for further proceedings consistent herewith.

The Supreme Court erred in denying the appellant’s motion to vacate the judgment by confession without prejudice to his right to commence a plenary action. As is the case here, an affidavit of confession of judgment may be attacked by motion where the basis of the attack is that the signature on the affidavit is a forgery (see, Albert v Wender, 19 AD2d 737). If the affidavits on the motion are conflicting, proof should be taken and the motion should be decided on the basis of the evidence adduced. A plenary action is not necessary (see, Albert v Wender, supra). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.