79 Misc. 2d 651 | N.Y. Sup. Ct. | 1974
Almost identical actions were brought by plaintiffs to recover for injuries sustained by the infant, an employee of Spancrete Corporation, allegedly as the result of a defective ¡crane being used by Spancrete. The two actions were consolidated for trial by order dated October 3, 1974.
Spancrete, on November 2,1970, entered into what is variously described by plaintiffs as a lease and sale-lease agreement to obtain the crane from defendant Pettibone. This agreement was approved ¡by Pettibone on December 1, 1970. On the same date Pettibone executed a “ Without Recourse Assignment ” to defendant General Electric .Credit Corporation. In its answer to plaintiffs’ complaint, in addition to certain admissions and denials, General Electric Credit Corporation set forth as an affirmative defense the claim that the assignment of the agreement to it by Pettibone constituted a secured transaction and that under the terms of section 9-317 of the Uniform Commercial Code it could not be held liable in tort or contract and, therefore, the complaint failed to state a cause of action against it. .General Electric Credit Corporation now moves for summary judgment on that ground.
Neither plaintiffs nor Pettibone has entered any legal opposition to ¡General Electric’s motion. Plaintiffs submitted nothing. Pettibone’s attorneys sent the court a letter. Such is not sufficient to show the existence of a triable issue of fact (6 CarmodyWait 2d, New (York Practice, .§ 39:29).
This situation creates problems without any consideration of the merits of General Electric’s motion. It was said in Geraci
“ It should be observed that the only affidavits submitted by appellant in opposition to the motion were the conclusory affidavits of counsel, which primarily repeated the allegations of the complaint. Such affidavits of an attorney not having personal knowledge of the event, and not stating evidentiary facts are insufficient on ,a motion for summary judgment.” (Davis v. Shelton, 33 A D 2d 707, 708.) Although the court above was dealing with affidavits in opposition to summary judgment, the same rule is applicable to those in support of the motion. The district manager’s affidavit adds nothing to explain what the transaction between General Electric and Pettibone was. The foregoing notwithstanding, the agreement between Pettibone and iSpancrete has been submitted. It is referred to as a lease. ‘ ‘ However, calling an agreement a lease does not make it so if under its terms and provisions it is in fact a conditional bill of sale since f we must look to the rights it confers and the obligations it imposes to determine whether it has the essential attributes of a contract of conditional sale or of an installment sale’.” (Matter of Merkel, Inc., 46 Misc 2d 270, 272.) The agreement obligated Spancrete to “lease” the crane for a
The agreement we are concerned with comes within paragraph (b) above completely. Under this agreement, Spanerete did not have an option. Under paragraph 25 title passed to it automatically upon its making the monthly payments called for, that is, as it is phrased in paragraph (b), “ the lessee shall become
I realize that I am not dealing with a motion hy Pettibone for summary judgment but feel it necessary to see what its position is in regard to Spanerete and the crane in order to determine what it ¡had to assign to General Electric because, as is said, nemo dat quod non habet — no one can give that which he has not. ¡Since all Pettibone had was a security interest, .that is all it could assign to General Electric. Under section 9-317 of the Uniform Commercial Code, then, General Electric cannot be held liable in contract or tort for Pettibone’s acts or omissions or for Spanerete’s if there be any such.
■Since defendant Pettibone, as stated, has failed to file anything other than a letter in opposition to General Electric’s motion, I will not deal with its objection which, according to the letter,, does not deal with the merits of General Electric’s position but only with the possibility of asserting a cross claim against it. If Pettibone feels it has grounds to proceed against General Electric it has a remedy aside from a cross claim.
General Electric Credit Corporation’s motion for an order dismissing the complaint and directing summary judgment in its favor is in all respects granted.