Home Savings of America, F.A. v. Lacher

159 A.D.2d 235

Opinion

Order, Supreme Court, New York County (Jacqueline Silbermann, J.), entered March 23, 1989, denying plaintiff’s motion for summary judgment, is unanimously affirmed, without costs.

The plaintiff Home Savings of America, F.A. (Home) sues to recover principal and interest on three promissory notes executed by defendant which are made payable to the Savings One Association at 148 North High Street, Gahanna, Ohio. UCC 1-201 (20) defines a "holder” of an instrument as "a person who is in possession of * * * an instrument * * * drawn, issued or indorsed to him or to his order or to bearer or in blank”. Home is not a "holder” of the instrument under this definition. Nevertheless, Home attempted to demonstrate that on June 20, 1985, the Savings One Association was merged into Home and, therefore, the notes automatically became the property of Home by virtue of the operation of 12 CFR 546.3. However, plaintiff did not submit a copy of the merger agreement, or any official document, or an affidavit by anyone with personal knowledge of the facts to attest to the merger. In the absence of evidence sufficient to demonstrate that such merger did occur, as well as other questions of fact relating to the right of Home to sue on the promissory notes, the IAS court was correct in denying Home’s motion for summary judgment. Concur—Sullivan, J. P., Asch, Kassal and Smith, JJ.