Ruesch Intl., Inc. v City & Suburban Fed. Sav. Bank

Ruesch Intl., Inc. v City & Suburban Fed. Sav. Bank 2006 NY Slip Op 07972 [34 AD3d 224] November 2, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Ruesch International, Inc., Respondent,
v
City & Suburban Federal Savings Bank, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered November 2, 2005, awarding plaintiff the principal sum of $105,000, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered October 20, 2005, which granted plaintiff's motion for summary judgment in lieu of complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

This action was amenable to summary relief because plaintiff adequately established defendant's obligation to repay funds it had paid to defendant on a check dishonored by the drawee bank, and defendant's failure to make payment thereon (see DDS Partners v Celenza, 6 AD3d 347 [2004]). The purported defense of having processed the check in a timely fashion and in good faith (UCC 3-419 [3]) is unavailing because the conversion here was not between a depositary bank and a true owner, but rather between a bank and a nonbanking institution to which it had negotiated a check (cf. Moore v Richmond Hill Sav. Bank, 117 AD2d 27 [1986]). Concur—Tom, J.P., Mazzarelli, Andrias, Sweeny and Malone, JJ.