Metlab Corp. v. Marine Midland Bank, N.A.

Order unanimously affirmed without costs. Memorandum: Plaintiff failed to meet its initial burden of showing entitlement to summary judgment as a matter of law (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). First, as Special Term correctly found, plaintiff seeks summary judgment based on its contract with defendant, but that contract is not in the record. Second, although plaintiff’s theory in its complaint is that defendant paid on the letter of credit for the benefit of a transferee without proper documentation of transfer by the beneficiary, defendant’s telex in the record states that payment was made for the benefit of the named beneficiary. (Appeal from Order of Supreme Court, Niagara County, Mintz, J.—Summary Judgment.) Present—Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.