Francis Coyote Shivers v Citibank, N.A.

Shivers v Citibank, N.A. 2004 NY Slip Op 08172 [12 AD3d 248] November 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Francis Coyote Shivers, Respondent,
v
Citibank, N.A., Appellant. (And a Third-Party Action.)

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Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered November 17, 2003, which, to the extent appealed from, denied defendant's motion to dismiss the cause of action for conversion of funds, unanimously affirmed, without costs.

This action stems from the deposit into a joint bank account of a number of checks containing allegedly forged endorsements. Whether a bank acted in a commercially reasonable manner with respect to accepting for deposit an instrument from someone who was not the true owner (UCC 3-419 [3]) is generally a question of fact (Holland Am. Cruises v Carver Fed. Sav. & Loan Assn., 60 AD2d 545 [1977]). Having failed to submit any evidence that its acceptance of these checks comported with reasonable commercial standards under the circumstances, defendant was not entitled to judgment as a matter of law. Concur—Mazzarelli, J.P., Ellerin, Lerner and Sweeny, JJ.