Village Import Auto Sales & Serv. v Motors Ins. Corp.

Village Import Auto Sales & Serv. v Motors Ins. Corp. 2006 NY Slip Op 09813 [35 AD3d 1216] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Village Import Auto Sales & Service, Appellant, v Motors Insurance Corporation et al., Respondents.

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Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered December 22, 2005 in a breach of contract action. The order granted defendants' motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

Memorandum: Plaintiff commenced this action for, inter alia, breach of contract based on defendants' alleged wrongful denial of insurance coverage with respect to seven of plaintiff's vehicles seized by the federal government. According to plaintiff, the seller of the vehicles had warranted to plaintiff that they met all domestic regulatory requirements, but a federal investigation resulted in a determination that none of the vehicles was in compliance with the regulations. Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint on the ground that the loss of the vehicles was not covered by the "False Pretense Coverage" of the insurance policy. That provision applies to, inter alia, "loss of, or to, a covered auto caused by . . . [the acquisition of] an auto from a seller who did not have legal title, including an auto that is stolen, or which has a title that is counterfeit, forged, altered or is otherwise invalid." In support of their motion, defendants failed to submit evidence establishing that the seller had legal title to the vehicles at issue or that title to the vehicles was not counterfeit, forged, altered or otherwise invalid. We thus conclude that defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Indeed, defendants submitted as an exhibit to their attorney's affidavit the affidavit of a federal agent in support of the seizure warrant indicating that the vehicles were fraudulently imported into this country without valid certifications and that the vehicle identification numbers had been altered. Present—Hurlbutt, J.P., Gorski, Smith and Pine, JJ.