
    General Motors Acceptance Corporation, Respondent, v. Capitol Ford-Mercury, Inc., Appellant.
   Appeal from an order of Supreme Court, entered August 24, 1971 in Saratoga County, which granted summary judgment to respondent. This is an action in replevin to recover a 1970 GMAC %-ton truck purchased by appellant, a dealer in new and used cars, from one McEachron on October 15, 1970. Respondent had previously financed McEaehron’s purchase of the track and filed a financing statement pursuant to section 9-402 of the Uniform Commercial Code. From an examination of the papers submitted it appears that there is a question of fact as to whether McEachron was in the business of selling automobiles at the time of the sale to appellant. (Uniform Commercial Code, § 1-201, subd. [9].) A letter dated May 20, 1971 from the New York State Department of Motor Vehicles states that McEachron was registered as a dealer from January 1, 1970 through December 31, 1970. A second letter dated June 8, 1971 from the same department states that McEachron’s dealer license expired December 31, 1970, but he surrendered one set of dealer plates and his MV 50 and MV 53 books on August 25, 1970. As there are issues of fact, summary judgment may not be granted. Order reversed, on the law, and motion denied, without costs. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.  