Levitz v. N.Y. Cmty. Bancorp

• Decision Date: 14 August 2019
• Docket Number: Index 63691/2017
• Citation: 2019 NY Slip Op 34478 (U)
• Parties: HOWARD LEVITZ, Plaintiff, v. NEW YORK COMMUNITY BANCORP, INC. D/B/A NEW YORK COMMERCIAL BANK, Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 34478(U)

HOWARD LEVITZ, Plaintiff,
v.
NEW YORK COMMUNITY BANCORP, INC. D/B/A NEW YORK COMMERCIAL BANK, Defendants.

Index No. 63691/2017

Supreme Court, Westchester County

August 14, 2019

Unpublished Opinion

DECISION AND ORDER

JOHN P. COLANGELO, JUDGE.

The following papers were read on Plaintiffs motion for an Order pursuant to CPLR 93212 granting summary judgment:

NYSCEF
Notice of Motion-Affidavit-Affirmation-Exhibits A-N	24-40
Opposition-Affirmation-Affidavit-Exhibits A-K
Memorandum of Law	46-59
Reply Affirmation-Affidavit-Exhibits a, x	60-63

Upon the foregoing papers it is ORDERED that the motion is disposed as follows:

This is an action by Plaintiff Howard Levtiz ("Plaintiff') to recover monetary damages as a result of Defendant New York Community Bancorp, Inc. d/b/a New York Commercial Bank's allegedly unauthorized wire transfer of$84, 700.00 form the Plaintiffs escrow account. A copy of the Summons and Verified Complaint, Defendant's Verified Answer and Counterclaim and Plaintiffs Reply to the Counterclaim, inter alia, are attached as Exhibits to the instant motion. (PI. Exhs. I, J, & K, respectively). Plaintiffs Affidavit in Support ("Levitz Aff.") and the Affirmation of Glen Curtis, Esq. ("Curtis Aff.") are submitted in support of the instant motion.

1

Plaintiff is an 84 year old attorney duly licensed to practice law in the State of New York. His operating and escrow accounts were maintained at Allied Irish Bank, which was taken over by Atlantic Bank and then by Defendant. His accounts were transferred and continue to be held under the name of Defendant. (Levitz Aff., ¶¶3, 4). As he began to wind down his law practice in New York City and operate out of his home in Westchester County, his banking business was conducted at the Yonkers Branch located at 2320 Central Avenue (the "Branch")(Id. ¶5). On June 5, 2015, Plaintiff opened the subject Escrow Account at the Yonkers Branch. A Funds Transfer Agreement and Authorization to Act upon Instructions Transmitted by Telephone, Facsimile or Electronic Mail Communication ("the Agreement") was executed by Plaintiff and a Branch representative on that date. (Id. ¶7).

The Handling Procedure outlined in paragraph 5 (a) of the Agreement provided for the following to occur before a wire transfer was made from Plaintiff's account: "(a) Each Facsimile Communication or Email Communication shall be sent to the Business Account Representative at the Bank Branch primarily responsible for servicing the Business and shall be manually signed and contain sufficient information to effect the instructions ... (b) Upon receipt of a Facsimile Communication or Email Communication containing a signature, the Bank will compare the signature of the Authorized Person with the exemplar of such signature contained in Exhibit A (emphasis in original) on file with the Bank. Then, if the Bank, in its sole discretion, determines that the Authorized Person's signature compares favorably with the signature on record, the Bank will place a Telephone Call-Back to the same Authorized Person who initiated the Facsimile or Email Communication ... in order to confirm that the Facsimile Communication or Email Communication was sent by Business."

2

According to Plaintiff, on July 28, 2016 at 9:00AM, Defendant and specifically branch manager Victoria Conti received a fraudulent email (Le. one not sent by Plaintiff) requesting a wire transfer from Plaintiffs purported account ending in 0445. (Pl. Exh. B). The account maintained at Defendant's branch ended in 4445. (Levitz Aff, ¶13). A further fraudulent email was sent to...