First American Bank v. Fink

Appellate Division of the Supreme Court of New York

First American Bank v. Fink

183 A.D.2d 437

Appellate Division of the Supreme Court of the State of New York·Decided May 7, 1992·Published

Opinion

— Order, Supreme Court, New York County (Shirley Fingerhood, J.) entered October 26, 1991, which, insofar as appealed from, denied defendants-appellants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS court that material questions of fact exist, particularly with respect to the element of scienter. We would also point out that while defendant Fink may not have affirmatively misrepresented any information to plaintiff, nondisclosure is often tantamount to such in situations such as this (see, e.g., Noved Realty Corp. v A. A. P. Co., 250 App Div 1). Concur — Sullivan, J. P., Rosenberger, Wallach, Ross and Kassal, JJ.

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— Order, Supreme Court, New York County (Shirley Fingerhood, J.) entered October 26, 1991, which, insofar as appealed from, denied defendants-appellants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS court that material questions of fact exist, particularly with respect to the element of scienter. We would also point out that while defendant Fink may not have affirmatively misrepresented any information to plaintiff, nondisclosure is often tantamount to such in situations such as this (see, e.g., Noved Realty Corp. v A. A. P. Co., 250 App Div 1). Concur — Sullivan, J. P., Rosenberger, Wallach, Ross and Kassal, JJ.

First American Bank v. Fink, 183 A.D.2d 437 (N.Y. Ct. App. 1992).

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Opinion

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