JPMorgan Chase Bank v Commerce Bank
2003 NY Slip Op 19087 [2 AD3d 155]
December 4, 2003
Appellate Division, First Department
As corrected through
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 25, 2004


JPMorgan Chase Bank, Respondent,
v
Commerce Bank, Appellant.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered October 2, 2002, which, upon the prior grant of plaintiff's 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 plaintiff's 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 plaintiff's 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 plaintiff's motion, defendant relied solely on an attorney's affidavit in which counsel argued that there is a "strong inference" that plaintiff's 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.