Plaintiffs assert, among other things, that they mistakenly believed that the DLJ supplemental prospectus was accurate, that Apple Bank knew it was not and that it failed to correct the misapprehension. Plaintiffs have stated a cause of action and have put forth evidence sufficient to raise a triable issue of fact. Therefore, Apple Bank's motion for summary judgment with respect to this cause of action is denied. In sum, Apple Bank's motion for summary judgment is granted with respect to plaintiffs' causes of action for breach of contract, negligent misrepresentation, negligence, breach of the implied covenant of good faith and fair dealing and unilateralmistake. The motion is denied with respect to plaintiffs' claims for fraud and rescission based upon mistake.
Plaintiffs also move for summary judgment in their favor.
However, the existence of numerous issues of fact in connection with their surviving claims precludes the granting of the motion. The materiality of the information purportedly concealed, its availability from other sources and the extent of plaintiffs' due diligence investigations are all issues to be weighed by a fact finder. Accordingly, plaintiffs' motion for summary judgment is denied. Apple Bank also moves for summary judgment as to a number of plaintiffs who were not named in the Participation Agreement, on the ground that these plaintiffs have no standing. However, schedule A of the Participation Agreement did not purport to list parties to the agreement, but, rather, their custodial accounts from which funds were transferred to Apple Bank to purchase the rights.