
    Peoples Westchester Savings Bank, Appellant, v Empire of America Realty Credit Corp., Respondent.
   — In an action, inter alia, to recover damages for conversion, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Burrows, J.), entered August 10, 1990, as denied its cross motion for summary judgment in its favor.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff, a New York savings bank, claims to have sent five promissory notes and a cover letter via overnight delivery service to the defendant, a dealer in promissory notes and mortgages on the secondary market. According to the terms of the cover letter, the defendant was given the option of purchasing the notes at quoted prices. The defendant could hold the notes as the plaintiff’s agent for up to 20 days, whereupon the defendant had to either transfer the purchase price to the plaintiff, or endorse the notes to the plaintiff and return them immediately. This action was commenced when the defendant failed to comply after a demand by the plaintiff at the end of the 20 days. Prior to filing an answer, the defendant moved to dismiss the complaint and the plaintiff cross-moved for summary judgment. The Supreme Court, Westchester County, denied both the motion and the cross motion, stating that there were issues of fact precluding summary judgment. We agree.

Contrary to the plaintiff’s contentions, we find that the defendant’s motion papers do raise triable issues of fact regarding, inter alia, whether the defendant acted as a prudent bailee and whether the notes were delivered to a third party having a right of possession superior to that of the plaintiff.

In light of our determination, we need not address the other contentions raised by the parties. Mangano, P. J., Sullivan, Harwood and Pizzuto, JJ., concur.  