Seemungal v XCEL Fed. Credit Union

[*1] Seemungal v XCEL Fed. Credit Union 2015 NY Slip Op 50249(U) Decided on March 2, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570554/14

Gracelyn Seemungal, Plaintiff-Appellant,

against

XCEL Federal Credit Union, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered on or about December 10, 2013, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Robert R. Reed, J.), entered on or about December 10, 2013, reversed, without costs, and judgment directed in favor of plaintiff in the principal sum of $1,100.

This small claims action stems from allegations that plaintiff made an $1,100 cash deposit into her account with the defendant credit union and that the funds were not properly applied to the account. Defendant acknowledged at trial that plaintiff did in fact tender the funds to one of its tellers at a time when defendant's computer system was offline, and that the teller thereupon issued plaintiff a handwritten deposit receipt. Defendant maintained - albeit without any documentary or other support - that it returned the money to plaintiff later that same day, at plaintiff's request, while the computer system was still offline.

Based on these undisputed facts, the court's dismissal of the action on the stated basis that "[plaintiff] failed to establish . . . that [defendant] did not return the deposited funds," may not stand. It being conceded that plaintiff in fact tendered the funds to defendant, the burden shifted to defendant to prove that the money was returned to plaintiff (see CPLR 3018[b]; CIT Group v Supermarkets Gen. Corp., 183 AD2d 454 [1992]). Given defendant's failure to substantiate in any way its claim that it returned the funds, and considering the court's own express finding that neither party's testimony was "more credible" than the other's, "substantial justice" (see CCA 1804, 1807) will best be served by awarding plaintiff a recovery of the undisputed deposit amount.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 02, 2015