Opinion
CA 02-00284
June 14, 2002.
Appeal from an order of Supreme Court, Onondaga County (Centra, J.) entered June 14, 2001, which granted plaintiffs' motion for summary judgment.
FRANK A. BERSANI, JR., SYRACUSE, FOR DEFENDANT-APPELLANT.
TISDELL, MOORE WALTER, SYRACUSE (ROBERT L. TISDELL OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.
Memorandum:
Supreme Court erred in granting plaintiffs' motion for summary judgment on the issue of liability in this action involving the private sale of a motor vehicle. Plaintiffs failed to meet their initial burden of establishing their entitlement to judgment as a matter of law with respect to fraud or the existence of an express warranty, and thus the burden never shifted to defendant to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).