Opinion
2018–05929 Index No. 152729/17
09-25-2019
PAGE AVENUE CHECK CASHING, LLC, Respondent, v. BANK OF AMERICA, N.A., et al., Defendants, Continental Indemnity Company, Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Patrick J. Lawless of counsel), for appellant. Russell Macnow Attorney at Law, LLC, New York, N.Y. (Lauren Papaleo of counsel), for respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Patrick J. Lawless of counsel), for appellant.
Russell Macnow Attorney at Law, LLC, New York, N.Y. (Lauren Papaleo of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to recover on two checks, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant Continental Indemnity Company appeals from a judgment of the Supreme Court, Richmond County (Kim Dollard, J.), entered May 9, 2018. The judgment, insofar as appealed from, upon an order of the same court dated May 2, 2018, inter alia, granting that branch of the plaintiff's motion which was for summary judgment in lieu of complaint insofar as asserted against the defendant Continental Indemnity Company, is in favor of the plaintiff and against the defendant Continental Indemnity Company in the principal sum of $60,000.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff, a check cashing company, established its entitlement to judgment as a matter of law by submitting copies of the endorsed checks drawn by the defendant Continental Indemnity Company, evidence of that defendant's failure to make payments called for by those checks, and evidence that the plaintiff was a holder in due course ( UCC 3–302 [1] ; see Hartford Accident & Indem. Co. v. American Express Co. , 74 N.Y.2d 153, 160, 544 N.Y.S.2d 573, 542 N.E.2d 1090 ; US Premium Fin. v. Terranova Masonry, Inc. , 172 A.D.3d 1139, 98 N.Y.S.3d 452 ; cf. Eisenberg v. HSBC Payment Serv. [USA] , 307 A.D.2d 950, 762 N.Y.S.2d 878 ). In opposition, Continental Indemnity Company failed to raise a triable issue of fact (see Green v. Darwish , 171 A.D.2d 644, 645, 567 N.Y.S.2d 126 ; Tropical Ornamentals, Inc. v. Visconti , 115 A.D.2d 537, 538–539, 495 N.Y.S.2d 729 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of the plaintiff's motion which was for summary judgment in lieu of complaint insofar as asserted against Continental Indemnity Company.
MASTRO, J.P., DILLON, BRATHWAITE NELSON and IANNACCI, JJ., concur.