(dissenting in part). I agree with the majority opinion, in result and reasoning, except that I would dismiss the third-party complaint against Thelen, because I think the third-party complaint (as supplemented by documentary evidence) does not adequately allege that Thelen was at fault for the nondelivery of the ASIRS.
As the majority explains, we assume in this case (without deciding) that State Street had a duty to plaintiffs to make sure the ASIRS was delivered to Bankers Trust. The sufficiency of the third-party complaint turns on whether State Street has adequately alleged that the underwriters (UBS and Salomon) and the issuer’s counsel, Thelen, undertook by their actions or words to perform this duty on State Street’s behalf. To me, the record shows that if anyone made such an undertaking it was the underwriters, not Thelen.
An expert affidavit submitted by State Street says that, according to the custom of the corporate trust industry, documents like the ASIRS are filed by “the issuer of the debt or its counsel and/or the underwriter or its counsel.” The affidavit thus provides no basis for saying whether it was Thelen or the underwriters who undertook the duty in these transactions. One indication that it was the underwriters is the simple fact that, in each of the transactions, the ASIRS wound up in the underwriter’s counsel’s possession. In the PATS transaction, the ASIRS was left with other closing documents at the underwriter’s counsel’s office. In the Series 6 and 7 Notes transaction, the ASIRS was prepared and signed after the closing, and then faxed by Thelen to the underwriter’s counsel.
I agree with the majority that, from these facts, it is possible to infer that all parties, including State Street, were relying on the underwriters to deliver the ASIRS to its proper destination. But these facts cannot support an inference that anyone was relying on Thelen to perform that task. Nor do the later statements by counsel for the underwriter in the PATS transaction, in which counsel seemed to assume that delivery of the ASIRS was something the underwriter’s counsel should have taken care of, support an allegation that the delivery was Thelen’s responsibility.
The only facts the majority refers to in support of its holding that the claim against Thelen may be maintained are: (1) that the issuer’s counsel delivered the ASIRS to the collateral trustee in two prior, similar transactions; and (2) that Thelen signed letters saying that the Series 6 and 7 Notes were properly *597secured. The first of these facts is, in my view, simply too flimsy to support an inference that Thelen undertook the duty to deliver the ASIRS in later transactions; one is not committed to do something forever, simply because one has done it twice. And Thelen’s statements that the debt was secured, even assuming they were wrong, seem to me logically unconnected with the question of who was supposed to deliver the ASIRS.
Accordingly, I would affirm the Appellate Division’s order to the extent that it dismissed the third-party complaint against Thelen.
Chief Judge Kaye and Judges Rosenblatt, Graffeo and Read concur with Judge Ciparick; Judge R.S. Smith dissents in part in a separate opinion in which Judge G.B. Smith concurs.
Order modified, etc.