Coulter v. Seneca Federal Savings & Loan Ass'n

Order unanimously affirmed with costs. Memorandum: Defendant was obligated to plaintiff’s decedent to protect her savings account from being withdrawn by an unauthorized person (see, Banking Law § 676; Payne v White, 101 AD2d 975, 976; American Lodge Assn. v East N. Y. Sav. Bank, 100 AD2d 281, 285). The issue in this case is whether defendant permitted an unauthorized withdrawal from the account of plaintiff’s decedent. Defendant maintains that the woman who withdrew the decedent’s funds was authorized to do so by a power of attorney, of which it admits it was not aware. Plaintiff, however, in opposition to defendant’s motion for summary judgment, introduced admissible evidence that raised a factual question concerning whether the decedent had the capacity to confer such power of attorney. The validity of the power of attorney cannot be resolved as a matter of law, and summary judgment was properly denied (see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425; Zuckerman v City of New York, 49 NY2d 557). (Appeal from Order of Onondaga County Surrogate’s Court, Wells, S.— Summary Judgment.) Present — Dillon, P. J., Callahan, Den-man, Boomer and Lowery, JJ.