Opinion
October 30, 1995
Appeal from the Supreme Court, Suffolk County (Cohalan, J.).
Ordered that the order and judgment is reversed insofar as appealed from with costs, the plaintiff's motion for summary judgment is denied, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings.
The appellant opened a brokerage account in the plaintiff's name. The plaintiff contends that the money put into the account was a gift from the appellant, whereas the appellant asserts that he put the money into the account to hide it from his wife from whom he was obtaining a divorce. A year later, the appellant instructed the brokerage firm to close the account. When the brokerage firm sent a check payable to the plaintiff, the appellant signed her name to the check, endorsed the check to himself, and then cashed the check.
The plaintiff then commenced this action against the appellant alleging a wrongful conversion of the brokerage account. The plaintiff moved for summary judgment alleging that it was clear that the appellant signed the plaintiff's name on the check and converted the funds for his own personal use. The court granted the plaintiff's motion for summary judgment finding that the appellant placed the money in the account for the plaintiff's benefit. We disagree and now reverse.
We conclude that there is a triable issue of fact concerning whether the money in the account belonged to the appellant or was a gift from the appellant to the plaintiff. Accordingly, the motion for summary judgment should have been denied (see generally, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067; Daliendo v. Johnson, 147 A.D.2d 312, 317). We note that the court denied as moot the appellant's cross motion for leave to serve a late answer to a notice to admit. This motion should be addressed by the Supreme Court on remittal. Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.