Schafler v. HSBC Bank USA

23 A.D.3d 1083, 803 N.Y.S.2d 924

Opinion

Appeal from an amended judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered August 16, 2004. The amended judgment awarded plaintiff $127,635.26 against defendants.

It is hereby ordered that the amended judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted in its entirety and the amended complaint is dismissed.

Memorandum: We agree with defendant HSBC Bank USA, formerly known as Marine Midland Bank, N.A. (HSBC), that Supreme Court erred in granting plaintiff’s motion for summary judgment and instead should have granted in its entirety the cross motion of HSBC for summary judgment dismissing the amended complaint against it. HSBC established its entitlement to judgment as a matter of law by submitting documentary proof that plaintiff has been fully compensated for the $47,600 withdrawn by her former spouse from their account, and plaintiff failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In view of our determination herein, we conclude that the amended complaint must be dismissed in its entirety (see generally Hecht v City of New York, 60 NY2d 57, 61-62 [1983]). Present—Scudder, J.P., Martoche, Pine, Lawton and Hayes, JJ.