Frank Rotella et al., Respondents, v. Richard McLaughlin, Appellant

Frank Rotella et al., Respondents, v Richard McLaughlin, Appellant. [743 NYS2d 358] [MAJORITY] —Appeal from an order of Supreme Court, Onondaga County (Centra, J.) entered June 14, 2001, which granted plaintiffs’ motion for summary judgment. 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 NY2d 320, 324). Present—Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Burns, JJ.