| Great Am. Ins. Co. v Auto Mkt. of Jamaica, N.Y. |
| 2015 NY Slip Op 08145 [133 AD3d 631] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| Great American Insurance Company, as Subrogee ofM&T Bank Corporation, Respondent, v Auto Market of Jamaica, N.Y.,Appellant. |
Richard Simon, Kings Park, N.Y., for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (JosephA.H. McGovern of counsel), for respondent.
In an action for replevin, the defendant appeals from an order of the Supreme Court,Queens County (Dufficy, J.), dated July 14, 2014, which granted the plaintiff's motionpursuant to CPLR 7102 for an order of seizure.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionpursuant to CPLR 7102 for an order of seizure is denied.
The plaintiff, as the subrogee of M&T Bank Corporation (hereinafter M&TBank), commenced this action to recover possession of a vehicle from the defendant, anauto dealer who purchased the vehicle from another auto dealer at auction for the sum of$31,705. The plaintiff moved for an order of seizure of the vehicle, which was grantedby the Supreme Court. The defendant appeals.
"An order of seizure is not a final disposition of a matter but is a pendente lite ordermade in the context of a pending action where the movant has established, prima facie, asuperior right in the chattel" (Americredit Fin. Servs., Inc. v Decoteau, 103 AD3d 761,762 [2013]). On a motion for an order of seizure, a plaintiff must demonstrate alikelihood of success on its cause of action for replevin and the absence of a validdefense to its claim (see CPLR 7102 [c], [d]; Siemens Med. Solutions USA, Inc. v Magnetic Resonance ImagingAssoc. of Queens, P.C., 100 AD3d 620, 621 [2012]; see also TCF Equip. Fin., Inc. vInterdimensional Interiors, Inc., 109 AD3d 898, 899 [2013]; AmericreditFin. Servs., Inc. v Decoteau, 103 AD3d at 762).
Here, in support of its motion, the plaintiff submitted, inter alia, an affidavit from abanking officer of M&T Bank, who averred that M&T Bank held a lien on thesubject vehicle based upon its financing of the purchase of the vehicle by a nonparty(hereinafter the nonparty purchaser) in May 2012. M&T Bank's officer averred, inconclusory fashion, that the nonparty purchaser defaulted on the loan, that M&TBank unsuccessfully attempted to repossess the vehicle, and that the signature on aPennsylvania certificate of title purporting to release M&T Bank's lien "does notbelong to any officer of M&T Bank." The plaintiff's attorney argued that thenonparty purchaser had, in effect, stolen the vehicle by forging the signature on thecertificate of title, and therefore, the [*2]defendant hadacquired void title (see Candela v Port Motors, 208 AD2d 486, 487 [1994]; see also Faison v Lewis, 25NY3d 220, 228-229 [2015]; DiLorenzo v General Motors Acceptance Corp., 29 AD3d853, 854 [2006]).
However, as the defendant contends, under Pennsylvania's vehicle titling statute, thePennsylvania Department of Motor Vehicles was required to send M&T Bank, asthe first lienholder, the certificate of title for the vehicle (see 75 Pa Cons Stat Ann§§ 1107, 1132.1). M&T Bank's officer failed to address whetherthe certificate of title was delivered to M&T Bank in accordance with thePennsylvania statutes. Therefore, there was no evidence to support the plaintiff'scontention that the nonparty purchaser had physical possession of the certificate of titlesuch that he could have forged a signature thereon. Moreover, since M&T Bank'sofficer did not indicate the source of her knowledge that the signature on the certificateof title did not belong to an officer of M&T Bank, her averment is without anyprobative value (see Barraillierv City of New York, 12 AD3d 168, 169 [2004]; Dempsey v IntercontinentalHotel Corp., 126 AD2d 477, 479 [1987]).
M&T Bank's officer also failed to submit any business records that shereviewed relating to the nonparty purchaser's payment history, and did not assert that shehad personal knowledge of the payment history (see Citibank, N.A. v Cabrera, 130 AD3d 861 [2015]). Assuch, her averment that the nonparty purchaser defaulted on the loan was also withoutany probative value.
As a result, the plaintiff failed to demonstrate that it is probable that it will succeedon the merits, and that the facts are as stated in the affidavit submitted in support of itsmotion. Accordingly, the Supreme Court should have denied the plaintiff's motion for anorder of seizure. Chambers, J.P., Hall, Duffy and Barros, JJ., concur.