Mount Hope Universal Baptist Church, Inc. v Bowen

Mount Hope Universal Baptist Church, Inc. v Bowen 2019 NY Slip Op 04378 Decided on June 5, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 5, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
LINDA CHRISTOPHER, JJ.
2016-13135
(Index No. 1536/13)

[*1]Mount Hope Universal Baptist Church, Inc., plaintiff,

v

Gertrude Bowen, also known as Gertrude Massop, et al., defendants, Prudential Financial, Inc., appellant, Citigroup, Inc., doing business as Citibank, NA, respondent.

d'Arcambal Ousley & Cuyler Burk, LLP, New York, NY (Deirdre Connolly and Jaclyn D. Malyk of counsel), for appellant.

Zeichner Ellman & Krause LLP, New York, NY (Max Zeichner and Bruce S. Goodman of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for conversion, the defendant Pruco Life Insurance Company of New Jersey, incorrectly sued herein as Prudential Financial, Inc., appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated October 14, 2016. The order, insofar as appealed from, granted that branch of the motion of the defendant Citigroup, Inc., doing business as Citibank, NA, which was pursuant to CPLR 3211(a)(7) to dismiss the cross claim asserted against it by the defendant Pruco Life Insurance Company of New Jersey, incorrectly sued herein as Prudential Financial, Inc., for contribution.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, Mount Hope Universal Baptist Church, Inc. (hereinafter Mt. Hope), alleges that the defendants Gertrude Bowen (also known as Gertrude Massop), Ann Richardson, Jennifer Massop, Crystal Richardson, and Allison Bowen (hereinafter collectively the individual defendants) induced the defendant Pruco Life Insurance Company of New Jersey, incorrectly sued herein as Prudential Financial, Inc. (hereinafter Pruco), to issue a check to them for the proceeds of a life insurance policy that had been purchased by a relative of the individual defendants and named Mt. Hope as the beneficiary. The check was made payable to Mount Hope Universal Baptist Church, and the individual defendants are alleged to have opened a bank account in Mt. Hope's name with the defendant Citigroup, Inc., doing business as Citibank, NA (hereinafter Citibank), into which the check from Pruco, endorsed by one of the individual defendants, was deposited.

Citibank moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the cross claim asserted against it by Pruco for contribution. The Supreme Court granted that branch of the motion, and Pruco appeals.

Citibank established the applicability of the general rule that a drawer, such as Pruco, does not have a direct cause of action against a depository bank, such as Citibank, for collecting an [*2]improperly endorsed check (see Horovitz v Roadworks of Great Neck, Inc., 76 NY2d 975, 976; Prudential-Bache Sec. v Citibank, 73 NY2d 263, 272; Citigroup Global Mkts. v Infante, 134 AD3d 758; Parker v Flores, 202 AD2d 561, 562). Contrary to Pruco's contention, the narrow exception to that rule set forth in Underpinning & Found. Constructors, Inc. v Chase Manhattan Bank, N.A. (46 NY2d 459) is inapplicable here (see UCC 3-405[1][a]; Pellicio v Hartford Life Ins. Co., 262 AD2d 293). Accordingly, we agree with the Supreme Court's determination to grant that branch of Citibank's motion which was pursuant to CPLR 3211(a)(7) to dismiss Pruco's cross claim for contribution.

MASTRO, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court