Clark v. Marine Midland Bank, Inc.
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | Before BIRNS; All concur except SILVERMAN |
| Citation | 67 A.D.2d 846,413 N.Y.S.2d 9 |
| Decision Date | 06 February 1979 |
| Parties | Leonard CLARK et al., etc., Plaintiffs-Respondents, v. MARINE MIDLAND BANK, INC., Defendant, and Chase Manhattan Bank, N. A., Inc., Defendant-Appellant. |
Page 9
v.
MARINE MIDLAND BANK, INC., Defendant,
and
Chase Manhattan Bank, N. A., Inc., Defendant-Appellant.
Page 10
A. S. Julien, New York City, for plaintiffs-respondents.
D. A. Doherty, New York City, for defendant-appellant.
Page 11
Before BIRNS, J. P., and SILVERMAN, EVANS, FEIN and MARKEWICH, JJ.
MEMORANDUM DECISION.
Order of the Supreme Court, New York County, entered July 21, 1978, insofar as said order denied motion of defendant Chase Manhattan Bank, N. A., Inc. to dismiss the first and fourth causes of action, affirmed, with $75 costs and disbursements of this appeal to respondents.
In this class action against various banks for damages, plaintiffs assert that defendant-appellant Chase Manhattan Bank, N. A., Inc. and defendant Marine Midland Bank, Inc., with each of whom plaintiffs claim they maintain checking accounts, improperly imposed a service charge of $4.00 to $5.00 each time a customer's check was not honored by the bank because of insufficient or uncollected funds. The first cause of action alleges that such charge is "grossly disproportionate to the actual costs, if any, incurred by the defendant banks in connection with returned items" and thus is a penalty in violation of section 1-106 of the Uniform Commercial Code, Article 4 of the Uniform Commercial Code, and "other applicable laws and regulations". The fourth cause alleges that the checking account agreements signed by plaintiffs do not contain a provision authorizing a "service charge" or "penalty" when there are insufficient or uncollected funds and that therefore defendants in imposing these charges, breached the agreements.
On a motion to dismiss for failure to state a cause of action, the allegations of the complaint must be viewed most favorably to the pleader (Barr v. Wackman, 36 N.Y.2d 371, 375, 368 N.Y.S.2d 497, 502, 329 N.E.2d 180, 183). Applying that rule, the first and fourth causes of action are sufficient (Foley v. D'Agostino, 21 A.D.2d 60, 63, 248 N.Y.S.2d 121, 125).
First cause: It cannot be said as a matter of law that no violations of the statutes, laws and regulations alluded to have occurred. Accepting the argument of defendants and the conclusion of the dissent that these charges are not in violation of section 1-106 and Article 4 of the Uniform Commercial Code, we note nevertheless that...
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McCormick & Co., Inc. v. Empire Ins. Group, No. 1332
...of such an exclusionary clause as protective of insurers against claims based on erroneous or falsified inventories." Id. at 845, 413 N.Y.S.2d at 9 (citing Dunlop Tire & Rubber Corp. v. Fidelity Co. of Maryland, 479 F.2d 1243 (2d Cir.1973)). Furthermore, the Van Dutch court went on to make ......
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Jacobs v. Citibank, N.A.
...in the schedule of fees. To support their position plaintiffs rely, in large part, on our decision in Clark v. Marine Midland Bank, Inc., 67 A.D.2d 846, 413 N.Y.S.2d 9 and § 108 subd. 8 of the Banking Law. We think that this reliance is misplaced. Clark was a case predicated upon the same t......
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Dietrich v. Chemical Bank
...dishonored. N.Y. Banking Law Section 108(8)(c). This Court agrees with Chemical that the case of Clark v. Marine Midland Bank, Inc., 67 A.D.2d 846, 413 N.Y.S.2d 9 (1st Dept. 1979), does not call for a different result than is reached here. In Clark, Plaintiff alleged that the charges were v......
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McCormick & Co., Inc. v. Empire Ins. Group, No. 1332
...of such an exclusionary clause as protective of insurers against claims based on erroneous or falsified inventories." Id. at 845, 413 N.Y.S.2d at 9 (citing Dunlop Tire & Rubber Corp. v. Fidelity Co. of Maryland, 479 F.2d 1243 (2d Cir.1973)). Furthermore, the Van Dutch court went on to make ......
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Jacobs v. Citibank, N.A.
...in the schedule of fees. To support their position plaintiffs rely, in large part, on our decision in Clark v. Marine Midland Bank, Inc., 67 A.D.2d 846, 413 N.Y.S.2d 9 and § 108 subd. 8 of the Banking Law. We think that this reliance is misplaced. Clark was a case predicated upon the same t......
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Dietrich v. Chemical Bank
...dishonored. N.Y. Banking Law Section 108(8)(c). This Court agrees with Chemical that the case of Clark v. Marine Midland Bank, Inc., 67 A.D.2d 846, 413 N.Y.S.2d 9 (1st Dept. 1979), does not call for a different result than is reached here. In Clark, Plaintiff alleged that the charges were v......