JP Morgan Chase Bank, N.A. v Cohen

[*1] JP Morgan Chase Bank, N.A. v Cohen 2009 NY Slip Op 52725(U) [26 Misc 3d 1215(A)] Decided on December 31, 2009 Supreme Court, Albany County Platkin, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2009
Supreme Court, Albany County

JP Morgan Chase Bank, N.A., Plaintiff,

against

D. David Cohen, Defendant.



9275-08



McNamee, Lochner, Titus & Williams, P.C.

Attorneys for Plaintiff

(Kenneth L. Gelhaus, of counsel)

677 Broadway

PO Box 459

Albany, New York 12201

Meyer Suozzi English & Klein, P.C.

Attorneys for Defendant

(Brian Michael Seltzer, of counsel)

990 Stewart Avenue, Suite 300

PO Box 9194

Garden City, New York 11530

Richard M. Platkin, J.

Plaintiff JP Morgan Chase Bank, N.A. ("the Bank") moves pursuant to CPLR 3212 for summary judgment on its complaint. Defendant D. David Cohen opposes plaintiff's motion and cross-moves pursuant to CPLR 510 (3) to transfer venue in this action to Nassau County.

BACKGROUND

On or about December 11, 1991, defendant opened bank account 876-156057 ("the Account") with plaintiff's predecessor in interest, Chemical Bank. Defendant, an attorney in private practice, used the Account as his attorney trust account. A signature card apparently signed by defendant acknowledges the parties' mutual agreement that: (i) defendant has received and agrees to the bound by the Bank's Terms and Conditions for Commercial Account; and (ii) the provisions of the Uniform Commercial Code of the State of New York, local clearing house rules and the general banking usage prevailing in New York City shall be deemed to apply to the Account.

On Friday, October 12, 2007, defendant endorsed and deposited into the Account a purported official bank check issued by Washington Mutual Bank in the sum of $97,400. Four days later, on Tuesday, October 16, 2007, defendant directed plaintiff to wire $75,840 from the Account to a bank in Seoul, South Korea for the benefit of an entity known as Lux Trading. Also on that date, defendant also endorsed and deposited into his Account a second purported official bank check issued by Washington Mutual, this one in the sum of $270,000. Two days later, on Thursday, October 18, 2007, defendant directed the plaintiff Bank to wire $228,760 to a South Korean bank for the benefit of a bank in Seoul, South Korea for the benefit of an entity known as F.J. Investment.

Following its presentment to Washington Mutual, the first check in the amount of $97,400 ("the First Check") was returned to defendant on or about October 18 bearing a notation that it was a counterfeit and would not be honored. On Monday, October 22, 2007, the second check in the amount of $270,000 ("the Second Check") was returned to defendant bearing similar notation.

Following the dishonor of the two checks (collectively "the Checks") and defendant's successful wire transfer of the provisionally settled funds from his Account to certain South Korea payees, the Bank determined that the Account had a negative balance of $303,832.45 as of October 24, 2007. The Bank alleges that it has made demand upon defendant to restore the Account to a positive balance, but defendant has neglected or refused to do so.

By this action, the Bank seeks to recover the negative balance of $303,832.45 caused by the return of the Checks, as well as the attorney's fees incurred in prosecuting this action.[FN1] The Bank proceeds on theories sounding in breach of contract, unjust enrichment and breach of the endorsement warranty. Following joinder of issue, but without the benefit of any discovery, the Bank now moves for summary judgment on its complaint.

Defendant opposes plaintiff's motion for summary judgment on the merits and also argues that plaintiff's motion is premature. Defendant explains that he deposited the Checks into his Account and directed the transfer of funds to South Korea as an accommodation for a new client [*2]of his law practice. According to defendant, the Bank bears responsibility for the loss of funds due to its "own demonstrable and inconvertible bad faith, gross negligence and commercial unreasonable conduct by . . . advising defendant that the deposited checks had cleared and represented good funds' and that, as a result, plaintiff could make the wire transfers." Defendant also cross-moves to have venue in this action transferred to Nassau County, arguing that it is the location where all of the relevant events occurred and where the bulk of the material witnesses reside.

SUMMARY JUDGMENT

Summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). In evaluating a motion for summary judgment, a court should simply determine whether material issues of disputed fact preclude the grant of judgment as a matter of law (S. J. Capelin Assoc. v Globe Manufacturing Corp., 34 NY2d 338 [1974]). The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the Court directing judgment in movant's favor; the burden then shifts to the opposing party to demonstrate, by admissible evidence, the existence of any factual issue requiring a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

A.Applicability of the Bank's "Account Terms & Condition"

For its first cause of action, plaintiff alleges that defendant is in breach of the deposit agreement with the Bank. Attached as exhibits to the affidavit of Cheryl A. Cimperman, a Vice President of the plaintiff Bank, is a copy of defendant's signed application for the Account and a copy of the Terms and Conditions for Business Accounts and Services ("Account Terms and Conditions" or "ATC") allegedly governing the Account at relevant times.

Plaintiff directs the Court's attention to several provisions of the ATC that allegedly bear on the instant dispute. First, the ATC provides, under the heading "Final Payment of Items":

Any Item you deposit is received for collection only, even if we cash an Item (in which or in part by a deposit less cash) or give you credit for it. All Items are credited or cashed subject to final payment.

Second, under the section entitled "Returned Items and Notices of Claim to the Bank", the ATC states:

If any Items are returned by the payor bank for any reason or if any instrument we or a subsequent collecting agent receives in payment for collection Items is not paid, . . . we may charge the Item back to your account. . . . If we receive notice that an Item deposited in your account or that you cashed has not been paid, we may either immediately charge back your account or place a hold on your account and charge your account for the Item when the Item is returned to us.

Third, the ATC further provides, under the heading "Cashing of Items":

. . . If the Bank cashes any Item [payable or endorsed to you[ and it is returned unpaid, the Bank is authorized to deduct such amount from any account maintained by you, whether individually or jointly..

Finally, in the section labeled "Overdrafts," the ATC provides:

You must maintain sufficient available balances in your account on each business day to cover the aggregate amount of debits to be charged against your account that day. . . . If any debits to your account brings about or increases an overdraft, such overdraft shall be immediately due and payable without further notice and demand.

Thus, to establish its prima facie case for breach of contract, plaintiff relies upon defendant's signed application for the Account, the foregoing provisions of the ATC, the undisputed evidence that defendant's Account has a substantial negative balance caused by the return of the two Checks, and defendant's failure to make payment to plaintiff pursuant to the terms of the parties' deposit agreement.

In opposition, defendant first contends that "he was never a party to the ATC, and that no such document was ever accepted by him, or even seen by him, until he was served with plaintiff's motion for summary judgment." Relatedly, defendant contends that the card he signed when opening the Account in 1991 refers to another document entirely, the Bank's "Terms and Conditions for Commercial Accounts", whereas the document annexed to the Cimperman affidavit is denominated " Terms and Conditions for Business Accounts and Services". In this connection, defendant also argues that he did not open a commercial account at all; rather, he claims to have opened an attorney trust account.

In response, Ms. Cimperman avers that it is the Bank's policy and regular business practice to send the ATC, and any changes and amendments thereto, to the address at which the account holder receives monthly banking statements. This address is essentially re-verified each month with the mailing of the customer's checking statement. Any changes of address not reported to the Bank would be discovered and corrected as a result of the account statement being returned to the Bank. Ms. Cimperman avers that the Bank was not notified of a change in defendant's address at relevant times and that no banking statements were returned by the postal service to the Bank. Further, the Bank relies upon the initial portion of the ATR, which states:

This booklet, together with the accompanying enclosures, contains the general rules, regulations, terms and conditions ("Terms and Conditions") and . . . constitutes an agreement between you and the Bank. . . . By signing an account application or signature cards, or by using or continuing to use these accounts and services, you agree to these Terms and Conditions.

These Terms and Conditions may be supplemented by existing or future written agreements, acknowledgments, terms and conditions and notices . . . These Terms and Conditions supersede and replace any other Terms and Conditions or Account Conditions previously sent to you.

Finally, plaintiff directs the Court's attention to the tickets used by defendant to deposit the Checks into his Account, which states: "Checks and other items received for deposit subject to the provisions of the Uniform Commercial Code and your deposit account agreement with Chase."

The Court concludes that plaintiff has failed to demonstrate, prima facie, that the versions of the ATR and Deposit Agreement upon which it relies were transmitted to defendant. Proof of mailing may be established by evidence showing that the ATR actually was mailed to defendant or by proof of standard office practices and procedures followed by the Bank in the regular course of business that ensures that documents such as the ATR are duly addressed and mailed to customers (Kaufmann v Leatherstocking Coop. Ins. Co., 52 AD3d 1010 [3d Dept 2008]; Pardo v Central Coop. Ins. Co., 223 AD2d 832 (3d Dept 1996]). Upon such a showing, plaintiff would be entitled to a presumption of mailing, and the burden would then shift to defendant to deny receipt of the ATR and to also demonstrate that "routine office practice was not followed or was so careless that it would be unreasonable to assume that the [ATR] was mailed" (Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

While it is a close question, the Court concludes that the affidavit relied upon by plaintiff [*3]fails to provide sufficient details regarding the specific policies and business practices of the Bank with respect to the mailing of the ATR as to give rise to a presumption of mailing. The conclusory averments of plaintiff's Vice President do not disclose evidentiary facts that would permit defendant the opportunity to demonstrate that the Bank failed to follow its routine office and mailing procedures or that such procedures lack sufficient rigor as to render a presumption of mailing unreasonable. Simply put, plaintiff seeks the benefit of a rebuttable presumption that cannot be rebutted. In making this determination, the Court recognizes that defendant's mere denial of receipt of the ATR is insufficient to overcome the presumption that would arise from proof of mailing,[FN2] but since plaintiff has failed to meet its initial burden, there is no need to consider the sufficiency of defendant's opposition papers. Based on the foregoing, the Court concludes that present record does not permit the Court to determine the applicability of the ATR and Deposit Agreement supplied by plaintiff to the contractual relationship between the Bank and defendant.

While it is therefore unnecessary to address defendant's other contentions regarding the ATR in great detail, the Court makes the following observations in the interest of providing guidance to the parties with respect to further proceedings in this action. First, the Court sees no merit in defendant's contention that since his Account was used as an attorney trust account, the Bank's rules and regulations governing commercial accounts are inapplicable. The record is clear that defendant opened a commercial account with plaintiff and agreed to be bound by the terms and conditions applicable to commercial accounts.

Second, defendant's reliance on the Part III (A) of the ATR, which states that "[a]ll items are credited or cashed subject to final payment," is misplaced. That language, if applicable to the parties' relationship, makes clear that the provisional crediting or cashing of checks is contingent upon final payment being made and subject to rescission at any time prior to final settlement.

Finally, defendant's reliance on prior oral representations allegedly made by local branch officials in connection with his personal savings account have no relevance to the terms and conditions applicable to defendant's commercial Account with the Bank. And to the extent that the agreements provided by plaintiff do apply and are in conflict with these alleged oral representations, the written agreements make clear that their terms are controlling.

B.Right of Charge-Back

Defendant argues that regardless of whether or not he is bound by the ATR, the Bank's failure to send prompt notice of the Checks' dishonor resulted in the loss of the Bank's right pursuant to Uniform Commercial Code ("UCC") § 4-212 (1) ("Section 4-212") to charge-back his Account. The thrust of this argument appears to be that defendant would have refrained from making both wire transfers to South Korea if he had received timely notice of dishonor of the First Check. And to the extent that the Bank claims that the ATR relieved it of the obligation to provide timely notice of dishonor, defendant claims that such agreement is unenforceable pursuant to UCC § 4-103.

Section 4-212 (1), entitled "Right of Charge-Back or Refund", provides as follows:

If a collecting bank has made provisional settlement with its customer for an item and itself fails by reason of dishonor, suspension of payments by a bank or otherwise to receive a settlement for the item which is or becomes final, the bank may revoke the settlement given by it, charge back [*4]the amount of any credit given for the item to its customer's account or obtain refund from its customer whether or not it is able to return the items if by its midnight deadline or within a longer reasonable time after it learns the facts it returns the item or sends notification of the facts. . . .

Plaintiff, through the affidavit of its Vice President, claims that the First Check was returned to defendant with notice of dishonor on or about October 18, 2007 and that the Second Check was returned to defendant with notice of dishonor on or about October 22, 2007. However, plaintiff's moving papers do not establish on what date the Checks were returned to the Bank from Washington Mutual.

In opposition, defendant acknowledges that notice of dishonor of the First Check was sent to him by ordinary mail on October 17, 2007 and that the First Check was returned to him on October 18, 2007, with both mailings received by him on October 22, 2007. Defendant contends, however, that since the First Check bears a handwritten notation of "10/15", it demonstrates that the Bank knew of its dishonor before accepting his direction to transfer a portion of the provisional settlement of such check to South Korea on October 16, 2007. Defendant further claims that since the Bank mailed the first notice of dishonor on October 17, 2007, Bank officials can and should have advised him of this dishonor before he directed the wire transfer of a portion of the proceeds of the Second Check to South Korea on October 18, 2007. Finally, defendant takes issue with the manner in which notice was provided, apparently arguing that the Bank's duty to provide notice of dishonor required more under the circumstances than simply transmitting the notices of dishonor and the returned Checks to him by ordinary mail.

The Court concludes that defendant's contentions are lacking in merit. There is nothing in the record to establish that the handwritten notation of "10/15" on the First Check was made by the Bank following the check's dishonor by purported payor-drawer bank, Washington Mutual. Rather, it appears that this notation was made by Washington Mutual. Thus, the record does not demonstrate the Bank's knowledge of dishonor of the First Check on October 15, 2007.

Further, the Court sees no legal basis for defendant's claim that the Bank was required to adhere to a more stringent duty of notice with the respect to the First Check based on his intention to make a second wire transfer from the provisionally settled proceeds of the Second Check. Defendant has failed to allege a legal basis in the UCC or the parties' contract for such a requirement. Nor has defendant alleged facts sufficient to demonstrate that the Bank knew or should have known that the two Checks were so related such that a dishonor of the First Check would result in a dishonor of the Second Check.

Finally, as to defendant's objection to the manner of notice, the relevant standard of care is set forth in UCC § 3-508 (4), which states that "[w]ritten notice is given when sent although it is not received." In the absence of any demonstrated conflict between this provision and Article 4 (cf. General Motors Acceptance Corp. v Bank of Richmondville, 203 AD2d 851 [3d Dept 1994]), notice of dishonor of the First Check must be deemed to have been given on October 17, 2007.

Despite the shortcomings in defendant's arguments with respect to untimeliness of notice of dishonor, the Court is unable to affirmatively determine that the Bank's October 17, 2007 notice of dishonor of the First Check was timely made. As noted above, there is no proof as to when the First Check was returned to the Bank by Washington Mutual or the Bank otherwise learned of the facts regarding dishonor (see Section 4-212 [1]). Second, to the extent that there is an issue with the Bank's compliance with the UCC, the Court would then be required to consider the effect of the ATR, which has not been proven to be binding on defendant. Third, insofar as the Bank relies on the ATR to supersede the notice requirements of Section 4-212 (1), the Court would then be required to address defendant's argument that such agreement would be [*5]unenforceable under UCC § 4-103. Finally, if defendant does establish a violation of Section 4-212 (1), the effect of a such violation would have to be adjudicated (see Bank of NY v Asati, Inc., 184 AD2d 443 [1st Dept 1992];Ossandon v Swiss Bank Corp. (1988 US Dist. LEXIS 14034 [SDNY 1988]; Northpark Nat. Bank v Bankers Trust Co., 572 FSupp. 524 [SDNY 1983]).

Based on the foregoing, the Court concludes that present record does not permit the Court to determine whether the notice of dishonor sent to defendant on October 17, 2007 was timely made in accordance with the Section 4-212 (1). For similar reasons, the Court is unable to decide plaintiff's claim for breach of the indorser's warranty pursuant to UCC § 3-414 (1) as a matter of law (see UCC § 5-101 [2] [a] [unless excused, notice of any dishonor is necessary to charge any indorser]).[FN3]

C.Negligence/Bad Faith

Defendant further relies upon defenses sounding in "bad faith, negligence and commercially unreasonable conduct." These defenses arise principally out of defendant's allegations that prior to initiating the wire transfers to South Korea, he specifically advised the local branch manager and another Bank employee that he did not want to transfer the proceeds of the Checks on behalf of a new client of his law practice until such checks had cleared and represented "good funds". According to plaintiff, Bank officials understood his request, and the branch manager assured him that "the funds are good" prior to the first wire transfer.

In opposition, plaintiff does not dispute defendant's versions of events, but argues that any such communications with branch officials do not and cannot demonstrate negligence with respect to the Bank's handling of the Checks. Plaintiff further contends that defendant's allegations of "bad faith" fall short of meeting the standards required under New York law.

Courts applying New York law have been skeptical of efforts to hold banks liable for negligently misrepresenting the status of funds to a customer (see e.g. Call v Ellenville Natl. Bank, 5 AD3d 521, 524 [2d Dept 2004]; Moughrabie v Citibank, N.A.,20 Misc 3d 136(A) [App Term 2008]; Allen v Carver Fed. Sav. & Loan Assn., 123 Misc 2d 704 [App Term 1984]; Chase v Morgan Guarantee Trust Co., 590 FSupp 1137 [SDNY 1984]). This is due, in large part, to the text and structure of UCC Article 4, which, unless modified by agreement, governs the relationship between a bank and depositor (see also UCC § 1-101 [establishing scope of preemption of common law]).

The starting points of the analysis generally are "the accepted propositions under the Uniform Commercial Code that unless a contrary intent appears, the settlement given by a collecting bank is provisional before the settlement is final and the collecting bank is an agent of the owner during the collection process," thereby "operat[ing] to keep the risk of loss upon the owner of the item rather than the bank and giv[ing] to the depositary bank a right to reimbursement superior to the owner's rights to the proceeds" (Allen, supra, at 705; see Call, supra, at 523).

The analysis then turns to UCC § 4-212 (4), which provides "the right to charge-back is not affected by . . . failure of any bank to exercise ordinary care with respect to the item but any bank so failing remains liable." Courts have reasoned that communications to a customer do not fall within the bank's handling of an item; rather the statute refers to situations where the bank's negligence is the cause of the dishonor (Chase, supra, at 1139). Support for this interpretation is [*6]found is UCC § 4-103 (5), which establishes that in the absence of bad faith conduct, "[t]he measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care" (see Allen, supra). Clearly no amount of additional care by the Bank would have resulted in counterfeit checks being honored by Washington Mutual.

However, the cited authorities stop short of completing foreclosing the possibility of recovery for negligent misrepresentations regarding the status of funds. In Call, the Second Department held:

[We do not] find that this statutory allocation of risk should be altered by the defendant bank's alleged representation to [the customer] on March 15, 2001, that the check had cleared'. The term cleared' is not employed in the UCC and, as commonly used, is not the equivalent of "final settlement." Indeed, although Mr. Call apparently assumed such, he did not allege that this was a result of any inquiry with or representation to that effect by the defendant bank. (5 AD3d at 524).

To similar effect is Allen, in which the Court stated that "[w]e are dubious that the mere statement of a depositor that an unidentified teller told her (mistakenly) that a check had "cleared", when in fact it had not, constitutes that quantum of proof of negligence which will enable a customer to prevail against the bank under the circumstances disclosed here" (123 Misc 2d at 705-706). And the federal district court in Chase stated in a footnote that "[t]he outcome might be different if a bank expressly informed a customer that it had made a final settlement on the account" (590 FSupp at 1139 n 3). Thus, these cases suggest that at some types of misrepresentations by bank officials regarding the status of funds under some set of circumstances may be actionable under a theory of negligence, notwithstanding the foregoing statutory analysis.

Given the fact-intensive inquiry undertaken in these precedents, the lack of any pre-trial discovery in this matter, and the lack of factual record sufficient to determine as a matter of law the applicability of the ATR,[FN4] the Court concludes that summary judgment on this issue is premature (see CPLR 3212 [f]). However, the Court concludes that plaintiff is entitled to dismissal of defendant's defense that the Bank acted in bad faith, as there is nothing in the record to support the conclusion that the Bank's conduct was tantamount to having become a participant in a fraudulent scheme (Prudential-Bache Sec. v Citibank., 73 NY2d 263, 275 [1989]; Calisch Assoc.v Manufacturers Hanover Trust Co., 151 AD2d 446, 447 [1st Dept 1989]).

D.Account Stated

Plaintiff also moves for summary judgment on its account-stated cause of action. "An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. The agreement may be express or, as here, implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [3d Dept 1993] [internal citations omitted]).

Plaintiff has come forward with proof that it sent defendant monthly statements of account setting forth the substantial negative balance resulting from the dishonor of the Checks and defendant's charge-back of plaintiff's Account. Plaintiff has further submitted evidence that [*7]defendant retained such statements without objection. This is sufficient to meet the Bank's initial burden.

In opposition, defendant avers that he objected to plaintiff's charge-back in response to inquiries from the Bank's fraud investigator. Defendant further submits several letters transmitted to the Bank's loss control officer in November 2007, including one dated November 2, 2007 in which defendant discusses the need to allocate financial responsibility for the loss between himself and the Bank in a reasonable and appropriate manner. Under the circumstances, the Court concludes that factual disputes preclude the grant of judgment as a matter of law on plaintiff's account-stated cause of action.

VENUE

Defendant cross-moves to transfer venue in this action to Nassau County pursuant to CPLR 510 (3), which provides that the Court "may change the place of trial of an action where . . . the convenience of material witnesses and the ends of justice will be promoted by the change." Such motion "shall be made within a reasonable time after commencement of the action" (CPLR 511).

Defendant argues that this action bears no relationship to Albany County, that all the material events took place in Nassau County, and that all witnesses to these events are located in Nassau County. With respect to witnesses, defendant identifies himself and the two Bank employees who he allegedly spoke to in connection with the banking transactions giving rise to this litigation. Defendant further contends his motion is timely, as no pre-trial discovery has yet taken place.

"A party seeking a discretionary change of venue pursuant to CPLR 510 (3) bears the burden of demonstrating that a change is appropriate and, generally, must support the application with detailed relevant information establishing that the convenience of the nonparty witnesses would be enhanced by the change" (Singh v Catamount Dev. Corp., 306 AD2d 738 [3d Dept 2003]; Manchester Techs., Inc. v Hansen, 6 AD3d 806 [3d Dept 2004] [convenience of non-party witnesses]). The only witnesses identified by defendant are parties to this action or their employees or agents, whose convenience carries "little if any weight" on this application (Mroz v Ace Auto Body & Towing, 307 AD2d 403 [3d Dept 2003]). Given the inability of defendant to identify any non-parties whose convenience would be promoted by a transfer of venue to Nassau County, the Court is unpersuaded by defendant's efforts to disturb plaintiff's choice of venue on discretionary grounds.

CONCLUSION

Based on the foregoing, the Court concludes that plaintiff's motion for summary judgment and defendant's motion to change venue to Nassau County both must be denied.

Accordingly,[FN5] it is

ORDERED that plaintiff's motion for summary judgment is denied, in accordance with the foregoing; and it is further

ORDERED that defendant's motion to change venue to Nassau County is denied; and it is further

ORDERED that counsel shall appear for a preliminary conference in this action at the Chambers of the undersigned (150 State Street, Albany, New York) at 1:30 p.m. on January 25, 2010; and it is further

ORDERED that prior to such conference, counsel shall confer in accordance with Rule 8 of the Commercial Division. [*8]

This constitutes the Decision and Order of the Court. The original Decision & Order is being transmitted to plaintiff's counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

December 31, 2009

RICHARD M. PLATKIN

A.J.S.C. Footnotes

Footnote 1:In the affidavit of Cheryl A. Cimperman, she avers that the Bank reduced this negative balance by offsetting a balance of $313.48 from defendant's savings account. However, she claims that this resulted in a negative balance of $304,286.52, a greater negative balance. It is unclear why the offset did not reduce the negative balance to $303,518.97.

Footnote 2:Alternatively, to the extent that plaintiff's conclusory assertions are sufficient to give rise to a presumption of receipt, defendant's conclusory denial of receipt is sufficient to create a material issue of disputed fact.

Footnote 3:In this connection, the Court rejects defendant's contention that he was not an "indorser" within the meaning of UCC § 3-414 (1) or that his endorsement, "for deposit", constitutes a disclaimer of his indorsement warranty.

Footnote 4:The ATR includes provisions that, among other things, establish that where there is a conflict between the representation of a Bank employee and the terms of the ATR, the ATR shall be controlling.

Footnote 5:The Court has considered the parties' remaining contentions and finds them unavailing or unnecessary to disposition of the instant motions.