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Sunfirst Federal Credit Union v. Empire Insurance

239 A.D.2d 894 Court N.Y. App. Div. Decision date 1997-05-30 English

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p. 894
Sunfirst Federal Credit Union, Respondent, v Empire Insurance Company/All City Insurance Company, Appellant.
[659 NYS2d 656]

Order unanimously reversed on the law with costs, motion granted and complaint dismissed. 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 NY2d 965 , 967; Zuckerman v City of New York, 49 NY2d 557 , 562). 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 AD2d 935 , 936; see also, Forest Med. Professional Condominium v

p. 895
Tiburzi, 214 AD2d 962 ; Eddy v Tops Friendly Mkts., 91 AD2d 1203 , affd 59 NY2d 692 ). 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 ). 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. (Appeal from Order of Supreme Court, Onondaga County, Hurlbutt, J.—Summary Judgment.) Present— Denman, P. J., Pine, Callahan, Boehm and Fallon, JJ.

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