dissent">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 Merrill Lynch’s potential liability to plaintiffs. As noted by the majority, defendant Marine Midland Bank, N. A. (Marine Midland) alleged in its answer that the indorsement of Spuck was authorized. Despite the fact that Marine Midland does not argue this point on appeal, such failure should not serve as a basis for the granting of summary judgment to the nonmoving parties. Quite simply, Marine Midland and defendant Chase Manhattan Bank, N. A. (Chase) are moving for summary judgment based on the assumption that even if Spuck were found after trial to be an unauthorized agent, they would be entitled to judgment in their favor. In other words, Marine Midland and Chase never conceded that there is no issue of fact with respect to Spuck’s status; the banks merely argued that questions of fact with respect to Spuck’s status are not relevant, since whatever Spuck’s status is found to be, they are not liable to plaintiffs. In this regard, if Spuck were found to be an authorized agent, the banks clearly would not be liable to plaintiffs.

*393A certificate from the State Insurance Department indicating that Spuck, as president of Suburban Consultants, Inc., was a licensed agent for Guardian Life during the period at issue, certainly creates an issue of fact with respect to the scope of Spuck’s authority.*

Further, even if Spuck was not an authorized agent, questions of fact exist concerning the applicability of UCC 3-406 (see, 6 Anderson, Uniform Commercial Code § 3-406 [3d ed]; White and Summers, Uniform Commercial Code §§ 16-5, 16-6, at 625-630 [2d ed]). A review of the record reveals that there is little evidentiary proof concerning the issue of plaintiffs’ negligence or lack thereof. Such condition of the record is explained again by the fact that it is Marine Midland and Chase here who are moving for summary judgment. Indeed, for purposes of the instant motions, Marine Midland and Chase take the position that they are entitled to summary judgment even if plaintiffs were not negligent. Thus, the parties never developed this issue in their argument before Special Term. Nevertheless, Chase argued before this court that under no circumstances could plaintiffs be granted summary judgment since questions existed with respect to plaintiffs’ negligence. In fact, plaintiffs never moved for summary judgment or submitted any evidence supporting their position that they were not negligent. The drastic remedy of summary judgment should not be granted to the nonmoving, nonappealing parties here without further development of this issue (see, Siegel, NY Prac § 282, at 339; see also, City Univ. v Finalco, Inc., 93 AD2d 792, 793).

Assuming, arguendo, that plaintiffs may not maintain a direct action against Marine Midland (but see, 7 Anderson, Uniform Commercial Code § 4-207:8, at 34-36 [3d ed]; 6 Anderson, Uniform Commercial Code § 3-404:6, at 146 [3d ed]; cf. White and Summers, Uniform Commercial Code § 15-5, at 601-603 [2d ed]), the majority’s discussion of the above issue in this case is academic since Chase has interposed cross claims against Marine Midland. As the majority has found that no issues of fact exist and has awarded summary judgment to the. nonmoving parties, I do not understand why it has declined to consider the cross claims. If there are no questions of fact, what is the purpose of remitting the cross claims?

*394I would therefore affirm and allow the matter to proceed to trial for resolution of all matters, including the cross claims.

Mahoney, P. J., Main and Harvey, JJ., concur with Casey, J.; Kane, J., dissents and votes to affirm in an opinion.

Order denying motion of defendant Marine Midland Bank, N. A. reversed, on the law, with costs, motion granted and complaint dismissed as to defendant Marine Midland Bank, N. A.

Order granting motion of defendant Chase Manhattan Bank, N. A. for reargument modified, on the law, without costs, by adding thereto a provision granting summary judgment to plaintiffs against defendant Chase Manhattan Bank, N. A., and, as so modified, affirmed.

As agent, Spuck may have been authorized to make the indorsement (see, 29 NY Jur, Insurance, §§ 431-434, at 417-422; 30 NY Jur, Insurance, § 831, at 183-184).

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