Abramowitz v Bank of Am.

[*1] Abramowitz v Bank of Am. 2013 NY Slip Op 51660(U) Decided on October 11, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Torres, JJ
570471/13.

Howard Abramowitz, Plaintiff-Appellant,

against

Bank of America,

OCTOBER 11, 2013 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT September 2013 Term Lowe, III, P.J., Torres, JJ.Howard Abramowitz,NY County Clerk's No. Plaintiff-Appellant,570471/13 -against- Bank of America,Calendar No. 13-261 Defendant-Respondent. Plaintiff appeals from an order of the Civil Court of the City New York, New York County (Frank P. Nervo, J.), dated February 13, 2013, which granted defendant's motion for summary judgment dismissing the complaint. Per Curiam. Order (Frank P. Nervo, J.), dated February 13, 2013, affirmed, with $10 costs, for the reasons stated by Frank P. Nervo, J. at Civil Court. In view of the undisputed record evidence that plaintiff did not discover the alleged fraud by the (nonparty) beneficiary of the wired funds or attempt to cancel the wire transfer until after the beneficiary's bank, defendant herein, had "accepted" the wire transfer (see UCC 4-A-209[2][a]; 4-A-405[1][i]), plaintiff's attempt to impose liability for his loss on defendant was properly rejected (see Banque Worms v BankAmerica Intl., 77 NY2d 362, 373 [1991]). Nor can defendant be cast in damages for failing to freeze the beneficiary's account, since plaintiff failed to procure a restraining order or other appropriate process as required by the Banking Law (see Banking Law § 134[5]; Greater Bright Light Home Care Servs. v Jeffries-E1, 5 AD3d 350, 351 [2004]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 11, 2013 Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of

the City New York, New York County (Frank P. Nervo, J.), dated February 13, 2013, which granted defendant's motion for summary judgment dismissing the complaint.
Per Curiam.

Order (Frank P. Nervo, J.), dated February 13, 2013, affirmed, with $10 costs, for the reasons stated by Frank P. Nervo, J. at Civil Court.

In view of the undisputed record evidence that plaintiff did not discover the alleged fraud by the (nonparty) beneficiary of the wired funds or attempt to cancel the wire transfer until after the beneficiary's bank, defendant herein, had "accepted" the wire transfer (see UCC 4-A-209[2][a]; 4-A-405[1][i]), plaintiff's attempt to impose liability for his loss on defendant was properly rejected (see Banque Worms v BankAmerica Intl., 77 NY2d 362, 373 [1991]). Nor can defendant be cast in damages for failing to freeze the beneficiary's account, since plaintiff failed to procure a restraining order or other appropriate process as required by the Banking Law (see Banking Law § 134[5]; Greater Bright Light Home Care Servs. v Jeffries-E1, 5 AD3d 350, 351 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2013