Opinion
February 2, 1976
In an action to recover damages based, inter alia, upon defendant's alleged wrongful failure to present a sight draft for timely collection, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated January 20, 1975, as, in treating its motion to dismiss the complaint for failure to state a cause of action as one also for summary judgment, denied the said motion. Order affirmed insofar as appealed from, with $50 costs and disbursements. Issues of fact are present which preclude the grant of summary judgment. These are, inter alia, whether the defendant exercised ordinary care in selecting properly qualified intermediary banks and agents and in giving proper instructions to them (see Uniform Commercial Code, § 4-202 [and par 4 of the Official Comment thereto, McKinney's Cons Laws of NY, Book 62 1/2, Part 2, p 552]); and whether defendant's actions or nonaction complied with general banking usage (see Uniform Commercial Code, § 4-103, subd [3] [and par 4 of the Official Comment thereto, McKinney's Cons Laws of NY, Book 62 1/2, Part 2, pp 522-523]). Cohalan, Acting P.J., Margett, Damiani and Hawkins, JJ., concur; Shapiro, J., dissents and votes to reverse the order insofar as appealed from and grant summary judgment to defendant, with the following memorandum: In my opinion, there is no issue of fact in this case which requires a trial. Defendant conformed with the Uniform Commercial Code in all respects. I would, therefore, reverse the order under review, and grant the motion insofar as it was treated by Special Term as one for summary judgment.