Simpson v. Term Industries, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN
• Citation: Simpson v. Term Industries, Inc., 510 N.Y.S.2d 873, 126 A.D.2d 484 (N.Y. App. Div. 1987)
• Decision Date: 27 January 1987
• Parties: George SIMPSON, Plaintiff, v. TERM INDUSTRIES, INC. et al., Defendants. TERM INDUSTRIES, INC., Third-Party Plaintiff-Appellant, v. CARRIAGE HOUSE MOTOR CARS, LTD., Third-Party Defendant and Fourth-Party Plaintiff-Appellant; Travelers Insurance Company et al., Fourth-Party Defendants-Respondents, et al., Fourth-Party Defendants.

Page 873

510 N.Y.S.2d 873

126 A.D.2d 484

George SIMPSON, Plaintiff, v. TERM INDUSTRIES, INC. et al., Defendants.

TERM INDUSTRIES, INC., Third-Party Plaintiff-Appellant, v. CARRIAGE HOUSE MOTOR CARS, LTD., Third-Party Defendant and Fourth-Party Plaintiff-Appellant;

Travelers Insurance Company et al., Fourth-Party

Defendants-Respondents, et al., Fourth-Party Defendants.

Supreme Court, Appellate Division First Department.

Jan. 27, 1987.

M.A. Lulkin, New York City, for third-party plaintiff-appellant.

R. Polifka, New York City, for fourth-party plaintiff-appellant.

R. Bakalor, New York City, H.N. Goodman, Brooklyn, for fourth-party defendants-respondents.

Before KUPFERMAN, J.P., and SULLIVAN, KASSAL, ELLERIN and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Eugene R. Wolin, J.), entered December 18, 1985, granting the motion and cross-motion by fourth party defendants Travelers Insurance Company ("Travelers") and the New Rochelle Police Department ("Police Department") for summary judgment dismissing the fourth party complaint, and denying the cross-motion by third party plaintiff Term Industries, Inc. ("Term") for leave to serve an amended third party complaint, unanimously reversed, on the law, Travelers' motion and the Police Department's cross-motion for summary judgment denied, the fourth party complaint reinstated, and Term's cross-motion for leave to serve an amended third party complaint in the form annexed to the cross-moving papers granted, without costs or disbursements.

The principal issue in this action concerns two conflicting claims of title to a 1960 Rolls Royce Silver Cloud automobile, bearing vehicle identification No. SXC 121. On September 23, 1979, George Simpson was operating the Rolls Royce and was stopped by a New Rochelle police officer because one of the vehicle's headlights was not operating. When Simpson, who had a suspended driver's license, could not produce the vehicle's registration or insurance card, a file check revealed that Simpson was the registered owner, but the vehicle bore a vehicle identification number for a car which had been reported as stolen to the Boston Police Department on June 28, 1975, more than 4 years earlier. Simpson was arrested and the vehicle impounded.

It appears that Simpson had leased the car from Term, which purchased the vehicle in 1978 from Carriage House Motor Cars, Ltd. It, in turn, had previously acquired the automobile from Wolf and Carisma Autos, Inc., which purchased the car from Steven Arnold, who lives in Canada and had imported the car from England to Montreal on either June 8, 1975 or August 6, 1975.

In contrast to the title relied upon by Term, Travelers claimed a superior title by reason of the insurer having paid $10,950 on August 7, 1975, to its insured, Richard Thomas, who, on June 28, 1975, reported the vehicle as having been stolen. Travelers had issued an insurance policy to Thomas on June 4, 1975 and alleged that its insured originally purchased the car on April 23, 1975 from one Ray Lilley, in England.

In considering the motion and cross-motion for summary judgment, Special Term concluded that the documents submitted reflected two claims of title--that relied upon by Term, which traced its title to Arnold and that of Travelers through Thomas, which was earlier in time. Thus, it granted Travelers summary judgment, holding that the insurer's claim to title predated that relied upon by Term and, therefore, was superior. We disagree.

The record is replete with factual inconsistencies which, in our view, cannot be finally resolved on the conflicting affidavits and proof adduced on the motions. In the first place, in seeking summary judgment, both Travelers and the Police Department relied principally upon affidavits and affirmations of attorneys, without requisite knowledge of the facts and, therefore, without probative value (Sutton v. East River Sav. Bank, 55 N.Y.2d 550, 553, 450 N.Y.S.2d 460, 435 N.E.2d 1075; Wehringer v. Helmsley-Spear, Inc., 91 A.D.2d 585, 457 N.Y.S.2d 78, affd. 59 N.Y.2d 688, 463 N.Y.S.2d 417, 450 N.E.2d 223; Executive Securities Corp. v. Gray, 67 A.D.2d 860, 413 N.Y.S.2d 674). Other than the submission of the various documents bearing upon the chains of title, neither moving party submitted evidentiary proof in admissible form, as required on such a motion (CPLR 3212[b]; Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298).

In sum, the documentary proof is not conclusive on the issue so as to justify this summary relief. It clearly appears that there are two conflicting chains of title neither of which has been traced beyond 1975, each establishing that the same Rolls Royce was imported from England and sent to two different owners at two different locations and on two different dates. In determining that one chain had a superior claim, Special Term improperly resolved an issue which should await trial since, in doing so, it overlooked the fact that there was substantial proof presented to raise factual issues as to the validity and...