Opinion
1427 CA 15-01023.
12-23-2015
STEVEN MUELLER MOTORS, INC., Plaintiff–Appellant, v. Tonya HICKEY and Fred Laury, Defendants–Respondents.
Comardo Law Firm, P.C., Auburn (Justin T. Huffman of Counsel), for Plaintiff–Appellant. Francis E. Maloney, Jr., Syracuse, for Defendants–Respondents.
Comardo Law Firm, P.C., Auburn (Justin T. Huffman of Counsel), for Plaintiff–Appellant.
Francis E. Maloney, Jr., Syracuse, for Defendants–Respondents.
Opinion
MEMORANDUM:
Plaintiff commenced this lawsuit asserting causes of action for breach of contract and replevin arising from plaintiff's sale of a motor vehicle to defendants. Plaintiff moved for summary judgment seeking the relief demanded in its complaint as well as dismissal of defendants' counterclaim for fraud. Contrary to plaintiff's contention, Supreme Court properly denied the motion.
Initially, we conclude that plaintiff failed to meet its burden on that part of the motion seeking summary judgment dismissing the counterclaim for fraud. Defendants' counterclaim “allege[d] the basic facts to establish the elements” of a cause of action for fraud (Sargiss v. Magarelli, 12 N.Y.3d 527, 531, 881 N.Y.S.2d 651, 909 N.E.2d 573 [internal quotation marks omitted]; see Heckl v. Walsh [Appeal No. 2], 122 A.D.3d 1252, 1255, 996 N.Y.S.2d 413; see also Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178, 919 N.Y.S.2d 465, 944 N.E.2d 1104), and plaintiff's submissions on the motion failed to eliminate all triable issues of fact with respect thereto (see Widewaters Herkimer Co., LLC v. Aiello, 28 A.D.3d 1107, 1108, 817 N.Y.S.2d 790; cf. MS Partnership v. Wal– Mart Stores, Inc., 2 A.D.3d 1482, 1483, 770 N.Y.S.2d 514). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Contrary to plaintiff's further contention, the court properly denied that part of the motion seeking the relief demanded in the complaint. Plaintiff failed to meet its burden on that part of the motion concerning the replevin cause of action inasmuch as the evidence submitted in support of the motion failed to eliminate all “triable issues of fact ... whether the plaintiff has a possessory right to the” vehicle at issue (Bugarsky v. Marcantonio, 254 A.D.2d 384, 384, 678 N.Y.S.2d 737; see generally Winegrad, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Furthermore, although plaintiff met its initial burden on that part of the motion concerning the breach of contract cause of action (see generally Resetarits Const. Corp. v. Elizabeth Pierce Olmsted, M.D. Center for the Visually Impaired [Appeal No. 2], 118 A.D.3d 1454, 1455, 988 N.Y.S.2d 797; Polyfusion Electronics, Inc. v. AirSep Corp., 30 A.D.3d 984, 985, 816 N.Y.S.2d 783), defendants raised a triable issue of fact whether plaintiff violated Vehicle and Traffic Law § 417, which would entitle them to, inter alia, rescission of the contract of sale (see generally Pinelli v. De Paula Chevrolet, 101 A.D.2d 643, 644, 475 N.Y.S.2d 551; Rayhn v. Martin Nemer Volkswagen Corp., 77 A.D.2d 394, 396–397, 434 N.Y.S.2d 775, appeal dismissed 53 N.Y.2d 796).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.