Opinion
Argued January 8, 1979
Decided February 15, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, OLIVER C. SUTTON, J.
Robert Abrams, Attorney-General (Shirley Adelson Siegel, Samuel A. Hirshowitz, Meyer S. Horowitz, Maurice A.M. Edkiss and Charles Goldstein of counsel), for appellant-respondent.
Joseph A. Di Benedetto, Andrea Catania and Edward N. Meyer for respondent-appellant.
MEMORANDUM.
Inasmuch as the petitioner Attorney-General alleged that the respondent National Bank of North America violated the provisions of article 7 (tit 1) of the General Obligations Law, the petitioner had legal standing to institute this proceeding against the respondent bank and, therefore, the petition should not have been dismissed on the ground that petitioner lacked standing. (See General Obligations Law, § 7-107.) An examination of the record before us, however, reveals petitioner failed to set forth any evidentiary facts to substantiate his claim that respondent acted in a fraudulent and illegal manner in violation of the General Obligations Law. Consequently, the petition was properly dismissed inasmuch as summary judgment should have been granted for respondent bank. (See Matter of Knickerbocker Field Club v Site Selection Bd. of City of N.Y., 41 A.D.2d 539, 540; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3212:23, p 443.)
Accordingly, for the reasons stated, the order of the Appellate Division should be affirmed, without costs to respondent. Respondent's cross appeal from so much of the order of the Appellate Division as dismissed respondent's appeal from an order of Special Term denying reargument should be dismissed, without costs to petitioner, as the denial of reargument involves a question of discretion of the type not reviewable by this court. (Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-585.)
I concur in the result. In my opinion, however, the provisions of title 1 of article 7 of the General Obligations Law impose no obligations upon the bank in which security deposits are deposited. Thus, section 7-107 of the General Obligations Law cannot serve to provide the Attorney-General with standing to proceed against such a bank for alleged violations of the statute.
If, on the other hand, the bank were to have engaged in a collusive scheme to defraud the tenants, the Attorney-General might then have standing to intervene pursuant to subdivision 12 of section 63 of the Executive Law in an appropriate case. However, no factual allegations supporting such a claim have been made.
Judges JASEN, JONES, WACHTLER and FUCHSBERG concur in memorandum; Judge GABRIELLI concurs in result in a separate memorandum in which Chief Judge COOKE concurs.
Order affirmed, without costs. Respondent National Bank's cross appeal from so much of the order of the Appellate Division as dismissed its appeal from an order denying reargument dismissed, without costs.