Aronowitz v Sovereign Bank

[*1] Aronowitz v Sovereign Bank 2011 NY Slip Op 51235(U) Decided on June 30, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2011
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-2460 K C.

Rachel Aronowitz, Appellant,

against

Sovereign Bank, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2010. The judgment, after a nonjury trial, dismissed the action.

 

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the principal sum of $972.32, which she claims was not deposited into her account at the defendant bank. At a nonjury trial, plaintiff testified that she had handed the teller a deposit slip indicating a total deposit of $2,605.14, consisting of $972.32 in cash and $1,632.82 in checks. Plaintiff, however, conceded at trial that the deposit slip did not reflect a cash amount and that the checks had not been itemized on the deposit slip. In addition, defendant's witness testified that this deposit transaction had involved only checks and no cash. The witness further testified that plaintiff's deposit was processed by the bank at the end of the day, when the error in plaintiff's deposit slip was found and the deposit was adjusted accordingly to reflect the sum of $1,632.82. Following the trial, the Civil Court found in favor of defendant dismissing the action.

While it is generally held that a deposit slip is in the nature of prima facie proof of the matters recited therein, such proof is not conclusive (see Barbaro v Citibank, 123 Misc 2d 662 [Civ Ct, NY County 1984]). The burden is on the bank to establish that the deposit slip is incorrect (see Jaing v First Nat. City Bank, 65 Misc 2d 150, 152 [Civ Ct, NY County 1970]; see also Barbaro, 123 Misc 2d at 664). In the instant case, defendant established that the deposit slip did not reflect a cash deposit in the sum of $972.32; that, in fact, there was no cash deposit; and that plaintiff deposited only checks totaling the sum of $1,632.82.

Accordingly, as substantial justice was done between the parties in accordance with the [*2]rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]), the judgment is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 30, 2011