Marine Midland Bank v. Fisher

• Decision Date: 23 December 1981
• Docket Number: No. 1,1
• Citation: 85 A.D.2d 905,447 N.Y.S.2d 186
• Parties: MARINE MIDLAND BANK, Respondent, v. Barbara C. FISHER, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 186

447 N.Y.S.2d 186

85 A.D.2d 905

MARINE MIDLAND BANK, Respondent, v. Barbara C. FISHER, Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 23, 1981.

Kagan & Lubic by Robert Kagan, New York City, for appellant.

Hancock, Estabrook, Ryan, Shore & Hart by Richard Cook, Syracuse, for respondent.

Before SIMONS, J. P., and CALLAHAN, DENMAN, MOULE and SCHNEPP, JJ.

MEMORANDUM:

Defendant appeals from an order of November 26, 1980 which granted plaintiff Marine Midland Bank (Bank) summary judgment in its action on a note executed by defendant and her deceased husband. Contrary to plaintiff's assertion, the order is appealable. While the decretal paragraph of that order merely states that defendant's motion to reargue was denied, it must be read in conjunction with the decisions in the proceedings before Special Term. On October 19, 1979 Special Term granted the Bank's motion for summary judgment and judgment was entered against defendant in the sum of $153,414.10 on October 25, 1979. On October 31, 1979 defendant moved to reargue. On September 15, 1980 Special Term determined that a triable issue of fact was presented concerning the authenticity of a defendant's signature on the note. Special Term reversed its prior order and denied summary judgment; however, no order to that effect was ever entered. By letter to the court dated September 23, 1980 counsel for the Bank argued that the court had erred in finding that the authenticity of defendant's signature on the note was in issue. On November 5, 1980 Special Term issued a third decision, finding that there was no dispute that defendant had executed the note and that the authenticity of her signature on an assignment of an insurance policy on the life of her deceased husband was immaterial to plaintiff's cause of action. Thereupon Special Term withdrew its decision of September 15, 1980 and let stand its decision of October, 1979. That series of events indicates that Special Term in fact granted defendant's motion to reargue, reconsidered the merits of the Bank's summary judgment motion, again reconsidered the merits and ultimately adhered to its prior decision embodied in the order and judgment of October, 1979. As such, the order of November 26, 1980 superseded that of October 19, 1979 (see Dennis v. Stout, 24 A.D.2d 461, 260 N.Y.S.2d 325) and is appealable (see Lincoln First Bank of Rochester v. Grabowski, 50 A.D.2d 1074, 1075, 376 N.Y.S.2d 342).

Two procedural flaws in the proceedings before Special Term mandate reversal of the November 26, 1980 order. Plaintiff had previously moved for summary judgment before a different Special Term justice. (Marine Midland Bank v. Fisher, Appeal No. 2, 85 A.D.2d 906, 449 N.Y.S.2d 664, decided herewith.) The motion was denied upon a determination that triable issues of fact existed, in part because...