Birjah v. Citibank

Appellate Division of the Supreme Court of New York

Birjah v. Citibank

224 A.D.2d 228, 637 N.Y.S.2d 403, 1996 N.Y. App. Div. LEXIS 941

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 6, 1996

StatusPublished

Cited by1 cases

This text of 224 A.D.2d 228 (Birjah v. Citibank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birjah v. Citibank, 224 A.D.2d 228, 637 N.Y.S.2d 403, 1996 N.Y. App. Div. LEXIS 941 (N.Y. Ct. App. 1996).

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Opinion

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 22, 1995, which denied plaintiff’s motion to dismiss third-party defendants’ counterclaims as against her, unanimously affirmed, without costs.

Plaintiff, as administratrix of an estate, seeks to recover against defendant bank the proceeds of checks allegedly paid by the bank over the forged signature of the decedent; the bank impleaded third-party defendants, the payee on the check and its principal, seeking indemnification if, as alleged by plaintiff, the decedent’s signature was forged by them; third-party defendants interposed a first counterclaim against the bank and against the plaintiff as "additional third-party defendant”, i.e., in both her individual and representative capacities, claiming damages resulting from the freezing of its account at the bank when plaintiff allegedly falsely told it that the checks were forged by them, and a second counterclaim against plaintiff, again in both her capacities, for defamation. The IAS Court properly sustained both counterclaims against plaintiff over objections that she is subject to counterclaim only in her representative capacity, but not by third-party defendants against whom she interposed no claims. Since plaintiff is the daughter of the intestate decedent for whose estate she also serves as administratrix, the counterclaims against her are allowable in her individual capacity under CPLR 3019 (c) to the extent of her interest in the estate, and in her representative capacity under CPLR 3019 (a) as another person alleged to liable with the bank. While a supplemental summons should have been served on plaintiff insofar as she was sued in her individual capacity, her reply was in both capacities and contained no jurisdictional defenses. Concur— Ellerin, J. P., Kupferman, Ross and Williams, JJ.

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—Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 22, 1995, which denied plaintiff’s motion to dismiss third-party defendants’ counterclaims as against her, unanimously affirmed, without costs.

Plaintiff, as administratrix of an estate, seeks to recover against defendant bank the proceeds of checks allegedly paid by the bank over the forged signature of the decedent; the bank impleaded third-party defendants, the payee on the check and its principal, seeking indemnification if, as alleged by plaintiff, the decedent’s signature was forged by them; third-party defendants interposed a first counterclaim against the bank and against the plaintiff as "additional third-party defendant”, i.e., in both her individual and representative capacities, claiming damages resulting from the freezing of its account at the bank when plaintiff allegedly falsely told it that the checks were forged by them, and a second counterclaim against plaintiff, again in both her capacities, for defamation. The IAS Court properly sustained both counterclaims against plaintiff over objections that she is subject to counterclaim only in her representative capacity, but not by third-party defendants against whom she interposed no claims. Since plaintiff is the daughter of the intestate decedent for whose estate she also serves as administratrix, the counterclaims against her are allowable in her individual capacity under CPLR 3019 (c) to the extent of her interest in the estate, and in her representative capacity under CPLR 3019 (a) as another person alleged to liable with the bank. While a supplemental summons should have been served on plaintiff insofar as she was sued in her individual capacity, her reply was in both capacities and contained no jurisdictional defenses. Concur— Ellerin, J. P., Kupferman, Ross and Williams, JJ.

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Bluebook (online)

224 A.D.2d 228, 637 N.Y.S.2d 403, 1996 N.Y. App. Div. LEXIS 941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birjah-v-citibank-nyappdiv-1996.

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