Opinion
24473/07.
Decided May 8, 2008.
Lester P. Taroff, Esq., Roe Taroff Taitz Portman, LLP, Patchogue, NY, Counsel for Plaintiff.
Andrei Jones (No Appearance) Staten Island, NY, Pro Se Defendant.
The plaintiff, Commerce Bank, N.A. moves for an Order pursuant to CPLR § 3212 granting plaintiff's motion for summary judgment, and directing that judgment be entered in favor of the plaintiff on the ground that there are no triable issues of fact requiring a trial.
In the underlying action plaintiff seeks reimbursement from defendant of $1,669.84 which was obtained by defendant, from plaintiff as a result of the negotiation of a subsequently dishonored check. The plaintiff seeks $1,669.84, together with interest from March 14, 2006, plus costs and disbursements, in connection with this action.
Article 4 of the Uniform Commercial Code ("UCC") governs the actions of the bank and the depositor. UCC 4-207(2) provides in relevant part:
1. Each customer and collecting bank who transfers an item and receives a settlement or other consideration for it warrants to his transferee and to any subsequent collecting bank who takes the item in good faith that:
(a) he has a good title to the item or is authorized to obtain payment or acceptance on behalf of one who has a good title and the transfer is otherwise rightful; and
(b) all signatures are genuine or authorized; and
(c) the item has not been materially altered; and
(d) no defense of any party is good against him; and
(e) he has no knowledge of any insolvency proceeding instituted with respect to the maker or acceptor or the drawer of an unaccepted item. In addition, each customer and collecting bank so transferring an item and receiving a settlement or other consideration engages that upon dishonor and any necessary notice of dishonor and protest he will take up the item.
A collecting bank has no duty to go behind checks regular on their face and inquire into facts and circumstances surrounding their issuance. Chartered Bank v. American Trust Co., 48 Misc 2d 314[1965] aff'd 26 AD2d 623, app. denied 18 NY2d 578. New York Community Bank was the defendant's agent for the collection of the check herein until final settlement was made, i.e., until the check was finally paid by the payor bank, UCC 4-201 , 4-211 and 4-213; Roslyn Sav. Bank v. Jude Thaddeus Glen Cove Marina, Inc., 266 AD2d 198; Allen v. Carver Fed. Sav. Loan Assn.,, 123 Misc.2nd 704. Until final settlement, the risk of non-collection remained with defendant and any settlement made on the check by the bank was provisional only. See, UCC 4-201(1), Roslyn Sav. Bank v. Jude Thaddeus Glen Cove Marina, Inc., supra; Chase v. Morgan Guarantee Trust Co.,, 590 F.Supp. 1137 [S.D.NY 1984]. A provisional credit is one that is charged back if the crediting bank is unable to collect on the underlying item. (UCC 4-212(1)). Once a bank learns of a counterfeit check, the bank may revoke the provisional credit, charge back the account or obtain a refund from the depositor for the funds drawn on the check as long as final payment (UCC 4-213 ) has not been made (UCC 4-301 ); Regal Tour Inc. v. European American Bank,, 108 Misc 2d 699, 702 [1981]; Call v. Ellenville National Bank , 5 AD3d 521 ; Ridgewood Savings Bank v. Grubb,, 11 Misc 3d 1093(A) [2006].
CPLR § 3212(b) requires that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
It is well-settled that the moving party has the prima face burden of establishing its cause of action or defense by offering proof in admissible form, such proof being sufficient to warrant a judgment as a matter of law in its favor. (CPLR § 3212[b]); Ciccone v. Bedford Cent. School Dist. , 21 AD3d 437 ; Zuckerman v. City of New York, 49 NY2d 557; Friends of Animals v. Associated Fur Manufacturers, Inc.,, 46 NY2d 1065.
Bare conclusory allegations are insufficient to defeat a motion for summary judgment. See, Spearman v. Times Square Stores, Inc. 96 AD2d 552, 553. Zuckerman v. City of New York, 49 NY2d 557, 560, 562. Further, the law is well settled that a party opposing a motion for summary judgment must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact. A party's expression of hope and unsubstantiated assertions are insufficient. Evidentiary proof in admissible form is required. Zuckerman v. City of New York, at 560, 562.
The defendant has not submitted any opposition to plaintiff's motion and the Court finds that the defendant, in the answer, fails to raise an issue of fact herein. Defendant's answer contains a statement by defendant that the debt is the result of an internet scam. This statement does not create a question of fact sufficient to defeat a finding of summary judgment in favor of plaintiff. Accordingly, plaintiff's motion for summary judgment is granted in the amount of $1,669.84, plus interest from March 14, 2006, costs and disbursements in connection with this action, on default.
The Clerk is directed to remove this case from the trial calendar and enter judgment in favor of plaintiff as set forth herein.
Movant shall serve a copy of this Order with Notice of Entry upon the defendant and the appropriate court clerk within ten (10) days of this Order.
The foregoing shall constitute the Decision and Order of the Court.