Colonna & Co. v. Citibank, N. A.

Order, Supreme Court, New York County (Stadtmauer, J.), entered October 14,1980 granting, upon reargument, plaintiff’s motion for summary judgment as to the issue of liability on the second and third causes of action, and other relief, is unanimously reversed, on the law, with costs, and plaintiff’s motion for summary judgment is denied, and the order appealed from is vacated in toto. Even apart from the question of applicability of subdivision (3) of section 3-419 of the Uniform Commercial Code, there appear to be questions of fact which preclude summary judgment at this time. Thus apart from the bald statement to that effect, and a statement by the attorney for the plaintiff that the alleged thief admitted it, there are no evidentiary facts establishing that “an employee of the plaintiff’s stole the checks [totaling $255,340] from plaintiff and opened the said account” with defendant bank, and that the employee stole and without authority used the corporate seal of plaintiff. (See Lambería v Long Is. R.R., 51 AD2d 730, 731.) Nor is there any explanation of how the continuous course of stealing of checks received from plaintiff’s customers went on for over a year without plaintiff noticing it, nor is there any indication of what the authority or position of the dishonest employee was. All of these are facts unavailable to the defendant and essentially available only to plaintiff. Such considerations make it unsafe to grant summary judgment, at least before full disclosure proceedings. (CPLR 3212, subd [f]; Terranova v Emil, 20 NY2d 493, 497; Proctor & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344, 362.) Concur — Murphy, P. J., Carro, Markewich, Silverman and Lynch, JJ.