Amanat v. Bank Leumi Trust Co.

243 A.D.2d 257, 662 N.Y.S.2d 501, 1997 N.Y. App. Div. LEXIS 9281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Stephen Crane J.), entered on or about April 26, 1996, which, in an action for money had and received, inter alia, dismissed the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The operative allegations of the complaint are that defendant, a bank, received the proceeds of checks that plaintiff made payable to defendant, that plaintiff never duly authorized defendant to make payment of the funds received to any party whatsoever, and that defendant has refused plaintiff’s demand to return such funds received by defendant but “belonging” to plaintiff. These allegations were correctly held insufficient to state a cause of action for money had and received in that they failed to give notice of why money represented by checks made payable to defendant rightfully belongs to plaintiff (see, Stephans v Apóstol, 17 AD2d 982, 983, citing, inter alia, Belkor Knitwear Co. v Posner, 78 NYS2d 618, 620). The relevance of the allegation that plaintiff did not authorize disbursement of the money is not apparent absent an allegation that plaintiff maintained an account with defendant or is otherwise entitled to the money. Since plaintiff asserts that he has already served an amended complaint and does not request leave to do so, we see no reason to modify to grant such leave. We have considered plaintiff’s other arguments and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Williams, Tom and Colabella, JJ.