Monreal v. Fleet Bank

Appellate Division of the Supreme Court of New York

Monreal v. Fleet Bank

263 A.D.2d 947, 695 N.Y.S.2d 455, 40 U.C.C. Rep. Serv. 2d (West) 805, 1999 N.Y. App. Div. LEXIS 7906

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

DecidedJuly 9, 1999

StatusPublished

This text of 263 A.D.2d 947 (Monreal v. Fleet Bank) 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.

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Monreal v. Fleet Bank, 263 A.D.2d 947, 695 N.Y.S.2d 455, 40 U.C.C. Rep. Serv. 2d (West) 805, 1999 N.Y. App. Div. LEXIS 7906 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order unanimously modified on the law and as modified affirmed with costs to defendant in accordance with the following Memorandum: Plaintiff was the victim of embezzlement by his bookkeeper from 1988 through May 10, 1995. It is undisputed that defendant mailed monthly statements of accounts and canceled checks to plaintiff beginning in 1989. Plaintiff notified defendant of the forged and altered checks on May 18, 1995 and commenced this action on January 14, 1997, alleging negligence and breach of contract.

Supreme Court erred in denying in part defendant’s cross motion for summary judgment dismissing the complaint, determining that there is an issue of fact whether defendant exercised ordinary care in paying items that were the subject of bank statements sent by defendant to plaintiff from May 18, 1994 to May 18, 1995. Plaintiff is precluded from asserting that his signature was unauthorized because defendant was not notified within one year from the time the first account statement containing forged and altered checks was sent to plaintiff (see, UCC 4-406 [4]; Woods v MONY Legacy Life Ins. Co., 84 NY2d 280, 285; Sears Coop. Sav. Trust v Norstar Bank, 203 AD2d 904). We modify the order, therefore, by granting the cross motion in its entirety and dismissing the complaint. (Appeal from Order of Supreme Court, Onondaga County, Stone, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.

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—Order unanimously modified on the law and as modified affirmed with costs to defendant in accordance with the following Memorandum: Plaintiff was the victim of embezzlement by his bookkeeper from 1988 through May 10, 1995. It is undisputed that defendant mailed monthly statements of accounts and canceled checks to plaintiff beginning in 1989. Plaintiff notified defendant of the forged and altered checks on May 18, 1995 and commenced this action on January 14, 1997, alleging negligence and breach of contract.

Supreme Court erred in denying in part defendant’s cross motion for summary judgment dismissing the complaint, determining that there is an issue of fact whether defendant exercised ordinary care in paying items that were the subject of bank statements sent by defendant to plaintiff from May 18, 1994 to May 18, 1995. Plaintiff is precluded from asserting that his signature was unauthorized because defendant was not notified within one year from the time the first account statement containing forged and altered checks was sent to plaintiff (see, UCC 4-406 [4]; Woods v MONY Legacy Life Ins. Co., 84 NY2d 280, 285; Sears Coop. Sav. Trust v Norstar Bank, 203 AD2d 904). We modify the order, therefore, by granting the cross motion in its entirety and dismissing the complaint. (Appeal from Order of Supreme Court, Onondaga County, Stone, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.

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Bluebook (online)

263 A.D.2d 947, 695 N.Y.S.2d 455, 40 U.C.C. Rep. Serv. 2d (West) 805, 1999 N.Y. App. Div. LEXIS 7906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monreal-v-fleet-bank-nyappdiv-1999.

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