JP Morgan Chase Bank v. Commerce Bank

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered October 2, 2002, which, upon the prior grant of plaintiffs motion for summary judgment, awarded plaintiff the principal sum of $174,362.76, unanimously affirmed, with costs. While defendant is correct that Pennsylvania law governs plaintiffs claim for breach of presentment warranties pursuant to the Uniform Commercial Code (see UCC 4-102 [2]), summary judgment was nonetheless properly granted since defendant failed, in response to plaintiffs prima facie showing of entitlement to judgment, to come forward with evidence sufficient to raise a triable issue or to offer an acceptable excuse for not doing so (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Moukarzel v Montefiore Med. Ctr., 235 AD2d 239 [1997]; Hanneford Circus v Cabar Circus Promotions, 201 AD2d 456 [1994]). In opposing plaintiffs motion, defendant relied solely on an attorney’s affidavit in which counsel argued that there is a “strong inference” that plaintiffs customer was negligent. Such speculation, however, is insufficient to defeat a summary judgment motion (see Zuckerman, supra; Lichtman v Mount Judah Cemetery, 269 AD2d 319, 321 [2000]; Moukarzel, supra). Concur—Mazzarelli, J.P., Andrias, Williams and Gonzalez, JJ.