Order reversed, with costs, motion for summary judgment granted, and matter remitted to Onondaga Trial Term for assessment of plaintiff's damages. Memorandum: Upon the pleadings and affidavits submitted on this motion by plaintiff for summary judgment it stands admitted that plaintiff ordered of defendant Empire Bituminous Products, Inc. (Empire) four barge loads of asphalt cement amounting to 2,491,000 gallons, the same to be placed by defendant in its storage tanks at Brewerton, New York for delivery therefrom into plaintiff's trucks from time to time as plaintiff demanded; that plaintiff paid Empire for such material; that Empire delivered the four barge loads into its storage tanks at Brewerton and held the material there subject to plaintiff's demand, and subsequently Empire delivered 1,452,461 gallons thereof into plaintiff's trucks as demanded; and that plaintiff was then entitled to delivery of an additional quantity of 1,038,539 gallons of such material. It is further admitted that Empire, under the management of defendant Russell W. Mahler and acting through him, sold such remaining gallons of asphalt material to third persons without plaintiff's consent; and upon demand by plaintiff for delivery thereof to it, Empire defaulted and admitted that it had sold the material and could not replace it at the time demanded. Empire then went into receivership. Empire's only defense is that the material which it had in its tanks for plaintiff did not meet required specifications and so it sold the same. Empire also asserts that plaintiff and it then agreed that Empire would later acquire for plaintiff a sufficient amount of the material of proper specification; and Empire alleges that it now has such new material and is ready to deliver it to plaintiff. Empire does not set forth the name of any person who on behalf of plaintiff entered into such agreement, the form thereof, nor any consideration therefor. Neither does it give any specifics as to where it has the substitute material ready for delivery to plaintiff. Although summary judgment may not be granted where the existence of a question of fact is in doubt or even arguable ( Terranova v. Emil, 20 N.Y.2d 493; Falk v. Goodman, 7 N.Y.2d 87, 91), "`A shadowy semblance of an issue is not enough to defeat the motion'" ( De Groes v. De Groes, 17 A.D.2d 930) and "`Bald conclusionary assertions, even if believable, are not enough'" ( Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259). Absent claim that the facts are not within his control, a party cannot defeat a motion for summary judgment without laying bare his proof in evidentiary form ( Di Sabato v. Soffes, 9 A.D.2d 297, 301; Kramer v. Harris, 9 A.D.2d 282). Empire's papers are insufficient factually to defeat the motion for summary judgment in this case, and its defense is a sham. The four barge loads of asphalt cement which Empire placed in its storage tanks at Brewerton for plaintiff in accordance with its contract and for which plaintiff paid, were held only subject to plaintiff's demand. The sale by Empire of over 40% of that material to third persons without plaintiff's consent constituted a conversion ( Pierpoint v. Hoyt, 260 N.Y. 26, 30). Plaintiff is, therefore, entitled to summary judgment for the value of the material converted by Empire and Mahler. The order denying its motion for summary judgment should be reversed and the motion granted and the matter remitted to Trial Term for assessment of plaintiff's damages. All concur, except Goldman, P.J., and Gabrielli, J., who dissent and vote to affirm the order.