A.B.J.M. CORP. v. PRUDENTI

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 A.D.2d 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.