Barnhard v. Barnhard

¶1dissents and votes to reverse with the following memorandum. Viewing the record in the light most favorable to MHT, the party opposing the motion for summary judgment, I find triable issues of fact requiring resolution at trial. Specifically, the circumstances of the subject transaction, including the parties’ banking agreement, present issues of fact as to the apparent authority of Ivan Barnhard to negotiate the check without inquiry by the bank into the authenticity of *717the indorsement thereon (see generally, Greene v Hellman, 51 NY2d 197; Chemical Bank v Haskell, 51 NY2d 85; Ford v Unity Hosp., 32 NY2d 464). If it is determined that the offending partner had such apparent authority, the remaining partners may be liable to MHT for payment of the proceeds (see, Partnership Law § 24; Ottinger v Dempsey, 161 AD2d 691). Therefore, the Supreme Court’s award of summary judgment to the third-party defendant Smith was error, and the order of the Supreme Court should be reversed and the matter remitted to the Supreme Court for further proceedings.