General

First American Bank of New York, Respondent, v. Paul R. Fink et al., Appellants, et al., Defendant

183 A.D.2d 437·New York Supreme Court, Appellate Division·1992·NY

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Opinion

First American Bank of New York, Respondent, v Paul R. Fink et al., Appellants, et al., Defendant. [MAJORITY] — 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.