Sunfirst Federal Credit Union v. Empire Ins. Company/ All City Ins. Co.

• Decision Date: 30 May 1997
• Citation: 239 A.D.2d 894,659 N.Y.S.2d 656
• Parties: SUNFIRST FEDERAL CREDIT UNION, Respondent, v. EMPIRE INSURANCE COMPANY/ALL CITY INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 656

659 N.Y.S.2d 656

239 A.D.2d 894

SUNFIRST FEDERAL CREDIT UNION, Respondent, v. EMPIRE INSURANCE COMPANY/ALL CITY INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 30, 1997.

Greene and Reid by Vincent Horan, Syracuse, for Appellant.

Goldberg and Fabiano, LLP, Syracuse, for Respondent.

Before DENMAN, P.J., and PINE, CALLAHAN, BOEHM and FALLON, JJ.

MEMORANDUM:

Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Defendant satisfied its initial burden by submitting evidence in admissible form establishing that the complaint has no merit because defendant acted in reliance upon an MV-901 form signed by plaintiff, which indicated that plaintiff's security interest in the automobile financed by plaintiff had been satisfied (see, CPLR 3212[b]; GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). A party opposing summary judgment may proffer hearsay evidence, but such proof may not be the sole factual basis for denying summary judgment (see, Callari v. Pellitieri, 130 A.D.2d 935, 936, 516 N.Y.S.2d 371; see also, Forest Med. Professional Condominium v. Tiburzi, 214 A.D.2d 962, 627 N.Y.S.2d 501; Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, 459 N.Y.S.2d 196, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243). Plaintiff failed to submit any evidence other than hearsay in opposition to defendant's motion and did not tender any excuse for the failure to do so (see, Zuckerman v. City of New York, supra, at 560, 427 N.Y.S.2d 595, 404 N.E.2d 718). We conclude that plaintiff failed to raise a genuine factual issue whether defendant improperly issued the settlement check to Ms. Hill alone instead of making it payable jointly to plaintiff and Ms. Hill as loss payee.

Order unanimously reversed on the law with costs, motion granted and complaint dismissed.