Opinion
February 2, 2001.
Judgment, Supreme Court, New York County (Charles Ramos, J.), entered May 24, 2000, which, upon the prior grant of defendant Republic Bank's motion for summary judgment, dismissed the complaint as against it, unanimously affirmed, without costs. Cross appeal from the same judgment unanimously dismissed, without costs, on the ground that defendant is not aggrieved by it.
Gary J. Mennitt for plaintiffs-appellants-respondents.
Celia Goldwag Barenholtz for defendant-respondent-appellant.
Before: Rosenberger, J.P., Williams, Tom, Ellerin, Wallach, JJ.
Since we affirm in this case and in Feinstein v. Fleet Bank (Appeal No. 2632, decided simultaneously herewith) based upon the lack of merit in plaintiffs' claims, we need not address the issue of whether Judiciary Law § 497(7)(a) provides the bank with a blanket release with respect to IOLA accounts. We find, as did the motion court, that there is no evidence raising a question of fact as to whether or not "the bank, with knowledge of the fiduciary's diversion of trust funds, accept [ed] such funds in payment of a personal obligation owed by the fiduciary to the bank * * * or the bank otherwise has actual knowledge or notice that a diversion is to occur or is ongoing" (see, Home Sav. of Am., FSB v. Amoros, 233 A.D.2d 35, 39). We have considered plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.