James v. Albank

• Decision Date: 25 August 2003
• Citation: James v. Albank, 307 A.D.2d 1024, 763 N.Y.S.2d 838 (N.Y. App. Div. 2003)
• Parties: IRIS M. JAMES et al., Appellants,<BR>v.<BR>ALBANK, Respondent.
• Court: New York Supreme Court — Appellate Division

307 A.D.2d 1024

763 N.Y.S.2d 838

IRIS M. JAMES et al., Appellants,

v.ALBANK, Respondent.

Decided August 25, 2003.

Prudenti, P.J., Ritter, Luciano and Cozier, JJ., concur.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs to the plaintiffs.

The plaintiffs commenced this action alleging that the balance of money held in a certificate of deposit account with the defendant bank was withdrawn without their permission or approval and that, despite due demand, the defendant failed to either account for or repay that money.The defendant alleged that the account was closed by the plaintiffs on December 22, 1999, and that the money therein was paid to them by bank check.In support of this assertion, the defendant proffered a withdrawal slip and bank check for that date evidencing the transaction, both of which are signed in the plaintiffs' names.

The plaintiffs moved for summary judgment, asserting that their purported signatures on the withdrawal slip and bank check were forged and that they never closed or received the balance of the subject account.The defendant cross-moved for summary judgment dismissing the complaint, asserting that the signatures on the withdrawal slip and bank check matched genuine examples of the plaintiffs' signatures, and that the transaction was completed pursuant to bank procedures designed to ensure that all such transactions were accompanied by proper identification.Further, it argued that the plaintiffs were precluded from challenging the genuineness of the disputed signatures pursuant to UCC 4-406 because they did not discover and notify the defendant of the problem in a timely manner.The Supreme Court denied the plaintiffs' motion and granted the defendant's cross motion.We modify.

In support of their motion, the plaintiffs demonstrated a prima facie entitlement to judgment as a matter of law by proffering sworn, express denials that the signatures on the withdrawal slip and bank check were genuine, and sworn, express denials that they either closed or received the moneys in the subject account.However, in opposition and in support of its cross motion, the defendant raised a triable issue of fact as to whether the signatures were genuine (seeCPLR 4536;People v Fields,287 AD2d 577[2001];Seoulbank, N.Y. Agency v D & J Export & Import Corp.,270 AD2d 193[2000];Dyckman v Barrett,187 AD2d 553[1992]).Thus, neither party was entitled to summary judgment on the issue of the genuineness of the disputed signatures and underlying transaction.

The action is not precluded by UCC 4-406.In relevant part, that section provides: "(1) When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries * * * the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof."

The section provides for various penalties for a customer's failure to do so, including the preclusion of claim that a signature on an item was forged (seeUCC 4-406 [1], [2];see generallyMonreal v Fleet Bank,95 NY2d 204[2000];Woods v MONY Legacy Life Ins. Co.,84 NY2d 280[1994];Vantrel Enters. v Citibank,272 AD2d 609[2000]).An "item" is defined as "any instrument for the payment of money even though it is not negotiable but does not include money"(UCC 4-104 [1][g]).The phrase "statement of account" is not defined in the UCC or by case law.

Although the transaction in dispute was evidenced by a withdrawal slip and a bank check, the defendant does not...