Opinion
No. 3075.
March 13, 2008.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered April 27, 2007, which, in this action seeking recovery for allegedly fraudulent funds transfers from bank accounts, denied defendants-appellants' respective motions for partial summary judgment as to those transfers governed by the one-year statute of repose in the Uniform Commercial Code, unanimously reversed, on the law, with costs, the motion granted and the matter remanded for further proceedings consistent herewith.
Wilmer Cutler Pickering Hale and Dorr LLP, New York (Joanne L. Monteavaro of counsel), for Bank Julius Baer Co. Ltd., Julius Baer Holding Ltd., Julius Baer Americas Inc., Julius Baer Investment Management LLC, Bernard Spilko, Wheeler Gemmer and Idania Vazquez-Leone, appellants.
Dickstein Shapiro LLP, New York (Andrew N. Bourne of counsel), for Mina Persyko, appellant.
Covington Burling LLP, New York (Philip A. Irwin of counsel), for Balz Eggimann and Urs Schwytter, appellants. Cooper, Brown Behrle, P.C., New York (Richard B. Cooper of counsel), for respondents.
Before: Saxe, J.P., Gonzalez, Buckley and Acosta, JJ. [ See 2007 NY Slip Op 30986(U).]
Defendants concede that the statute of repose (UCC 4-A-505) does not bar all plaintiffs' claims, since some of the claims involve certain items that do not constitute "funds transfers" within the meaning of UCC article 4-A. However, those claims to which the statute of repose applies must be dismissed as time-barred ( see Regatos v North Fork Bank, 5 NY3d 395, 402-403).
The evidence establishes that plaintiff Bijan Nassi reviewed the bank statements himself for a period of more than 12 years and neither objected to the funds transfers nor consulted with his own accountants or financial advisors as to the accuracy of the statements or because he found them difficult to understand. Thus, Nassi's claim that the bank statements were unclear and did not reasonably put him on notice of the alleged fraud is unavailing ( see Potts Co. v Lafayette Natl. Bank, 269 NY 181, 187). His testimony that he was assured by bank personnel that the bank statements could be reconciled with the statements of his faithless agent ( see Thomson v New York Trust Co., 293 NY 58, 69) is insufficient to support a claim of fraud against defendants so as to toll the statute of repose.
It remains to be determined which claims are governed by the statute of repose and should therefore be dismissed.