Leonard Smith, Inc. v. Lynch

Kane, J. (dissenting).

I would affirm since I do not find the matter ripe for the granting of summary judgment.

I agree with Special Term that issues of fact exist as to Robert Spuck’s status, i.e., was he an "authorized or * * * an unauthorized agent”. The fact that defendant Merrill Lynch, Pierce, Fenner and Smith (Merrill Lynch) conceded in the prior appeal (107 AD2d 902, 903) that Spuck was not an authorized agent of Guardian Life Insurance Company (Guardian Life) has no bearing on this case since neither of the banks involved here was a party to the prior appeal, which involved only…