Milfort v Chase Manhattan Bank

[*1] Milfort v Chase Manhattan Bank 2007 NY Slip Op 52040(U) [17 Misc 3d 132(A)] Decided on October 19, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-921 K C.

Getro Michel Milfort, Appellant,

against

The Chase Manhattan Bank, Empire Boulevard Branch #192, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered on March 29, 2006. The order denied plaintiff's motion seeking to vacate an order dismissing the action, granted upon his default in appearing for trial, and to restore the action to the trial calendar.

Order affirmed without costs.

In this action, inter alia, to recover for breach of contract, plaintiff alleged that signatures appearing on 13 checks were unauthorized. The action was dismissed when plaintiff defaulted in appearing at trial on February 28, 2006. Shortly thereafter, plaintiff moved to vacate the order dismissing the action upon his default in appearing at trial and to restore the action to the trial calendar. The court below denied the motion on the ground that plaintiff failed to demonstrate a meritorious cause of action since UCC 4-406 barred plaintiff from asserting said claim because he failed to provide written notice to defendant of the unauthorized signatures.

A party seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious cause of action (see Pacinello v Cohen, 39 AD3d 727 [2007]). In our view, plaintiff failed to demonstrate that a meritorious claim exists. The sole statement submitted with this appeal is that "monies where withdrawn from my checking account at a time when I was not present." This clearly is insufficient to establish the existence of a meritorious claim.

While UCC 4-406 (4) does not require written notice of a forged check, it still requires a customer to identify specifically the allegedly fraudulent items (see Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, 123 [2006]). By order dated December 1, 2005, the court adjourned plaintiff's case for trial and directed him to provide, among other things, specific dates [*2]when he notified defendant of his claim as to each unauthorized check. Plaintiff failed to provide this information and defaulted by not appearing on the trial date. In moving to vacate the default, plaintiff again failed to submit any proof as to when he notified defendant of the allegedly fraudulent checks. The court denied plaintiff's motion with leave to refile upon submission of more information as to the merits of his claim. Plaintiff failed to do so and moved, for a second time, to vacate the default. Plaintiff generally stated that he went to the bank on February 25 and 28, 2003 to report the problem, without referring to any particular checks.

These allegations are insufficient to establish proper notice under UCC 4-406 (see Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, supra). Despite repeated opportunities, plaintiff failed to specify when he notified defendant of his claim as to each allegedly forged check. Thus, plaintiff failed to present a meritorious cause of action, and his motion to vacate the default judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.