We Try Harder, Inc. v. Dave Ball Chevrolet, Inc.

Order unanimously reversed on the law with costs and motion denied. Memorandum: Plaintiff moved for summary judgment in its action seeking compensation for property damage inflicted upon plaintiff’s vehicle after it was stolen from a parking lot at defendant’s place of business. Defendant had prepared the car for delivery to plaintiff’s customer and had parked the car in the lot until the customer arrived. Plaintiff alleged that defendant left the keys in an unattended and unlocked car, thereby facilitating the theft. In support of its motion, plaintiff submitted only an affidavit of its damage control manager, who lacked personal knowledge of the facts and circumstances surrounding the theft of the vehicle. That affidavit is insufficient to support a grant of summary judgment (CPLR 3212 [b]; Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479; Onondaga Soil Testing v Barton, Brown, Clyde & Loguidice, 69 AD2d 984). Moreover, critical factual issues exist concerning the relationship between the parties and the party who should bear the risk of loss which preclude summary determination. (Appeal from order of Onondaga County Court, Mulroy, J. — bailment.) Present — Callahan, J. P., Doerr, Denman, Green and Balio, JJ.