Ruesch International, Inc. v. City & Suburban Federal Savings Bank

34 A.D.3d 224, 823 N.Y.S.2d 386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2006
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered November 2, 2005, awarding plaintiff the principal sum of $105,000, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered October 20, 2005, which granted plaintiffs motion for summary judgment in lieu of complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

This action was amenable to summary relief because plaintiff adequately established defendant’s obligation to repay funds it had paid to defendant on a check dishonored by the drawee bank, and defendant’s failure to make payment thereon (see DDS Partners v Celenza, 6 AD3d 347 [2004]). The purported defense of having processed the check in a timely fashion and in good faith (UCC 3-419 [3]) is unavailing because the conversion here was not between a depositary bank and a true owner, but rather between a bank and a nonbanking institution to which it had negotiated a check (cf. Moore v Richmond Hill Sav. Bank, 117 AD2d 27 [1986]). Concur—Tom, J.E, Mazzarelli, Andrias, Sweeny and Malone, JJ.