Capital One, N.A. v Digeronimo

[*1] Capital One, N.A. v Digeronimo 2014 NY Slip Op 50062(U) Decided on January 10, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaSALLE, J.P., NICOLAI and IANNACCI, JJ
2013-426 S C.

Capital One, N.A., Respondent,

against

Eugene Digeronimo, Appellant.

Appeal from an order of the District Court of Suffolk County, First District (C. Stephen Hackeling, J.), entered January 18, 2013. The order granted plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover the principal sum of $3,750.27, plaintiff moved for summary judgment, asserting that defendant had deposited two checks, drawn by third parties, into his checking account with plaintiff's bank and that defendant had withdrawn funds from that account prior to final settlement of the checks. The checks had subsequently been dishonored. In opposition to the motion, defendant alleged that he had been told by a branch manager that the checks had cleared before he had withdrawn the funds from his account. By order entered January 18, 2013, the District Court granted plaintiff's motion.

Since there was a provisional credit for the deposited checks and the checks were subsequently dishonored, plaintiff was entitled to charge back the provisional credit (see UCC 4-212 [1]; Roslyn Sav. Bank v Jude Thaddeus Glen Cove Marina, 266 AD2d 198 [2002]). Even if plaintiff's manager had represented to defendant that the checks had cleared, this representation would not alter plaintiff's right to charge back the provisional credit (see Call v Ellenville Natl. Bank, 5 AD3d 521, 24 [2004]; Hamza v Chase Bank, 22 Misc 3d 127[A], 2009 NY Slip Op 50027[U] [App Term, 9th & 10th Jud Dists 2009]; Moughrabie v Citibank N.A., 20 Misc 3d 136[A], 2008 NY Slip Op 51528[U] [App Term, 2d & 11th Jud Dists 2008]; Allen v Carver Fed. Sav. & Loan Assn., 123 Misc 2d 704 [App Term, 1st Dept 1984]).

Accordingly, the order is affirmed.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.

Decision Date: January 10, 2014