Kwong On Bank, Ltd. v. Monrose Knitwear Corp. , 74 A.D.2d 768 ( 1980 )

Order, Supreme Court, New York County, entered September 4, 1979, denying plaintiffs motion for summary judgment, is reversed, on the law, so far as appealed from, and plaintiffs motion for summary judgment "is granted, and judgment directed in favor of plaintiff for the amount sued on, together with interest and costs, and costs of this appeal. In this action on a dishonored check, the only issue of fact really attempted to be tendered by defendant is whether plaintiff bank was a holder in due course, or whether before giving value on the instrument, plaintiff had notice of any defense to the instrument. Plaintiff’s officers denied they had such notice. Defendant has submitted an affidavit by an officer of defendant saying that, at a meeting with certain officers of the bank on June 23, i.e., after the bank had become owner of the check and after it had been dishonored, one Johnny Yiu had stated that he had made known "to a key bank officer of Kwong On Bank as early as June 7th [i.e., five days before the bank took the check] that Mr. Chiang [payee’s officer] had been acting strangely and could not be found. To emphasize Mr. Yiu’s concern, he stated he told the bank officer on June 7th, or before, that Monrose [defendant] had stopped payment on two substantial checks drawn to the order of Orient [payee].” Apart from certain inherent improbabilities in this statement, the statement is hearsay. Such hearsay may still raise an issue requiring denial of summary judgment provided that the opposing party demonstrates "acceptable excuse for his failure to meet the strict requirement of tender in admissible form” of evidentiary proof. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068.) Here no excuse is offered for the failure to produce an affidavit by Mr. Yiu. Concur — Sullivan, J. P., Ross, Silverman and Bloom, JJ.