Martinez v Fleet Bank

[*1] Martinez v Fleet Bank 2006 NY Slip Op 52246(U) [13 Misc 3d 140(A)] Decided on November 8, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-135 N C.

Salvador Martinez, Appellant,

against

Fleet Bank, Respondent.

Appeal from a judgment of the District Court of Nassau County, Second District (Sharon Commissiong, J.), entered March 8, 2005. The judgment, after a nonjury trial, dismissed the action.

Judgment reversed without costs and matter remanded to the court below for a new trial.

Plaintiff, a customer of the defendant bank, issued a check on June 11, 2004 to a third party for the purchase of certain machinery. However, on June 21, 2004, plaintiff appeared at the bank and orally ordered that payment on the check, which he identified as check number 115, in the sum of $5,000, be stopped. Defendant paid the check on June 22, 2004. The court below held that defendant did not have a reasonable opportunity to stop payment and dismissed the action.

Plaintiff, the drawer of the check, has the right to order payment stopped, but the drawee bank must be afforded a "reasonable opportunity" to act on the stop payment order (UCC 4-403 [1]). Contrary to the lower court's findings, the evidence adduced at trial failed to establish that defendant was not afforded a reasonable opportunity to act on the stop payment order since plaintiff provided information which sufficiently identified the check (see Marine Midland Bank N.A. v Berry, 123 AD2d 254, 256 [1986]), and defendant failed to show that it did not have a reasonable opportunity to stop payment thereon when the check was presented for payment the next day. Moreover, the oral order to stop payment was binding on the defendant for 14 days (UCC 4-403 [3]). However, the burden was on plaintiff to establish the "fact and amount of loss [*2]resulting from the payment" of the check since he cannot profit from the bank's mistake (UCC 4-403 [4]; see Ted Granville Co. v Chemical Bank & Trust Co., 8 Misc 2d 806 [1957]). Although plaintiff testified that the check was tendered to a third party for the purchase of certain machinery, he failed to establish that he never
received said goods. Accordingly, since it appears that plaintiff may in fact be able to establish same, substantial justice (UDCA 1804, 1807) would best be served in this small claims action by granting plaintiff a new trial.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 08, 2006