Hua Chen v Bank of N.Y.

Hua Chen v Bank of N.Y. 2006 NY Slip Op 09559 [35 AD3d 664] December 19, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Hua Chen, Respondent,
v
Bank of New York, Appellant.

—[*1]

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), dated November 2, 2005, which denied its motion for summary judgment dismissing those causes of action which were to recover damages for the loss of certain enumerated items.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for breach of contract, conversion, and damage to bailed goods, based on the defendant bank's loss of the contents of a safe deposit box which the plaintiff leased from the defendant. Contending that some of the items placed into the safe deposit box by the plaintiff were not authorized for storage in the box pursuant to the parties' lease agreement (see Uribe v Merchants Bank of N.Y., 91 NY2d 336 [1998]), the defendant moved for summary judgment dismissing those causes of action which were to recover damages for the loss of the allegedly unauthorized items.

The Supreme Court properly denied the defendant's motion, as the defendant failed to meet its burden of establishing its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The nature and attributes of the lost items in question present issues of fact, necessitating a trial. Prudenti, P.J., Krausman, Mastro and Rivera, JJ., concur.