Foremost Insurance v. Moore

103 A.D.2d 1042, 478 N.Y.S.2d 436, 1984 N.Y. App. Div. LEXIS 19747

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1984
• Status: Published

Opinion

— Order unanimously reversed with costs, and motion denied, in accordance with the following memorandum: A question of fact exists concerning whether the motorcycle operated by Geisler was a “temporary substitute” motorcycle. Plaintiff, as the party moving for summary judgment, had the burden of presenting evidentiary facts in admissible form showing that there was no defense to its cause of action. Plaintiff failed to make this showing. The admissions purportedly made by defendant Geisler over the telephone had no probative value since they were not sworn to by Geisler or by the person who heard them. On the other hand, the sworn statements of Murphy made at his examination before trial indicated that the motorcycle involved in the collision may have been a “temporary substitute”. H Denial of plaintiff’s motion is without prejudice to renewal after completion of discovery. (Appeal from order of Supreme Court, Genesee County, Kramer, J. — declaratory judgment.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.