Opinion
May 16, 1966
In an action to recover money deposited with defendants, defendants appeal from so much of an order of the Supreme Court, Nassau County, entered January 7, 1966, as denied their cross motion (1) for summary judgment dismissing the amended complaint and (2) for summary judgment in favor of defendant United Industrial Bank on its counterclaim against plaintiff. Order modified by granting defendants' cross motion for summary judgment to the extent of dismissing the amended complaint as against defendant United Industrial Bank. As so modified, order affirmed insofar as appealed from, without costs. In our opinion, plaintiff failed to make any evidentiary showing whatever to overcome the factual presentation made by the defendant bank which indicated the lack of merit in plaintiff's claim against it (cf. Schillinger v. North Hills Realty Corp., 15 A.D.2d 539, affd. 11 N.Y.2d 1044). However, we are also of the opinion that issues are presented which require a trial both as to plaintiff's cause of action against defendant Cohen and the bank's counterclaim against plaintiff. We have not considered the exhibits annexed to plaintiff's brief which were not part of the record below (cf. Bennett v. Dorothy Lamour, Inc., 13 A.D.2d 816). Christ, Acting P.J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.