Opinion
11-15-2016
BAYERISCHE HYPO–UND VEREINSBANK AG, Plaintiff–Appellant, v. HSBC BANK USA, N.A., et al., Defendants–Respondents, Trowers & Hamlin, etc., Intervenor Defendant–Respondent.
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Jake M. Shields of counsel), for appellant. Locke Lord LLP, New York (Gregory T. Casamento of counsel), for HSBC Bank USA, N.A., respondent. Morgan, Lewis & Bockius LLP, New York (Joshua Dorchak of counsel), for Deutsche Bank AG and Trowers & Hamlins, as the external administrator of the International Banking Corporation, B.S.C., respondents.
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Jake M. Shields of counsel), for appellant.
Locke Lord LLP, New York (Gregory T. Casamento of counsel), for HSBC Bank USA, N.A., respondent.
Morgan, Lewis & Bockius LLP, New York (Joshua Dorchak of counsel), for Deutsche Bank AG and Trowers & Hamlins, as the external administrator of the International Banking Corporation, B.S.C., respondents.
Orders, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about July 21, 2015, which denied plaintiff's motion for summary judgment, and granted defendants' motions for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to declare that the subject funds do not belong to plaintiff, and otherwise affirmed, without costs.
Because the mistaken payment at issue was effected by wire transfer, this action is governed by UCC article 4–A. While plaintiff is correct that, to the extent a particular claim as to a wire transfer does not contravene or alter the rights and obligations created under article 4–A, a common-law claim may be asserted (see e.g. Sheerbonnet, Ltd. v. American Express Bank, Ltd., 951 F.Supp. 403, 413–414 [S.D.N.Y.1995] ), this is not such a case. Plaintiff's attempt to cancel the payment order is directly governed by UCC 4–A–211(1), which provides that, where, as here, a payment order has been accepted, a communication cancelling it is not effective without the agreement of the receiving bank, here, defendant HSBC Bank USA. Further, once the order was accepted, the funds became the property of the beneficiary, here, intervenor-defendant (TIBC) (see UCC 4–A–104[a] ; Bank of N.Y. v. Norilsk Nickel, 14 A.D.3d 140, 145, 789 N.Y.S.2d 95 [1st Dept.2004], lv. dismissed 4 N.Y.3d 846, 797 N.Y.S.2d 423, 830 N.E.2d 322 [2005] ), and it was permissible for HSBC to set off the overdraft owed to it by TIBC against the funds (see UCC 4–A–502 ). Similarly, because title had passed to TIBC, TIBC's other creditors were then able to attach the funds.
MAZZARELLI, J.P., ANDRIAS, SAXE, FEINMAN, GISCHE, JJ., concur.