Golomb v North Fork Bank

[*1] Golomb v North Fork Bank 2006 NY Slip Op 51825(U) [13 Misc 3d 1214(A)] Decided on September 27, 2006 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2006
District Court of Nassau County, First District

Alan E. Golomb and PERLA GOLOMB, Plaintiff(s)

against

North Fork Bank, RALPH DeLUCIA and AMINAH ELLIS, Defendant(s)



1792/06



Certilman, Balin, Adler & Hyman, LLP

Alan E. Golomb, Esq.

Scott Fairgrieve, J.

The defendants, North Fork Bank, Ralph DeLucia and Aminah Ellis, move this Court for an order pursuant to CPLR §3212 granting summary judgment, in favor of the defendants, thereby dismissing the complaint. The plaintiffs oppose the motion.

On or about January 17, 2006, this action was commenced, with the filing of the summons and complaint, dated December 15, 2005. The first cause of action is for conversion of gold bars and coins. The second cause of action is based in negligence and the third cause of action is for breach of contract. The plaintiffs allege that six gold coins and two gold bars were stolen/converted from their safety deposit box, as a result of the defendants' negligence (see, Summons and Complaint, ¶¶ 14, 15).

The plaintiffs, Alan and Perla Golomb, entered into a lease agreement with Savings of America, a division of Home Savings of America, F.A. on August 28, 1979, for a safety deposit box. Subsequently, the bank was acquired by Greenpoint Savings Bank, and then on February 22, 2005, North Fork Bank merged with Greenpoint Bank. The bank's customers were notified of the changes.

In order to maintain their safety deposit box, the plaintiffs were required to pay an annual rental fee. The plaintiffs failed to pay their annual rental fee for both 2003 and 2004. Consequently, Ralph DeLucia, a Senior Assistant Branch Manager of North Fork Bank, sent a letter, via certified mail, return receipt requested, to the plaintiffs on November 4, 2004, notifying them that they defaulted in making their payments and the bank would take action in accordance with the lease [*2]agreement within thirty (30) days of the letter. This letter was returned to Mr. DeLucia as undeliverable, since the plaintiffs had moved in August 2003 and did not notify the bank of their new address. Therefore the bank sent the letter to the last know post-office address, as recorded upon the books of the lessor on file. On January 20, 2005, Mr. Aminah Ellis, an Assistant Branch Manager of North Fork Bank, Mr. Ralph DeLucia and two locksmiths broke open the plaintiffs' safe deposit box. The contents of the box were placed into a sealable plastic bag, along with a notarized certificate of its contents. Nearly a year later, on December 12, 2005, Perla Golomb requested access to her safety deposit box, at which time, she was notified of the removal of its contents. Thereafter, Mrs. Golomb, on December 14, 2005, signed a form entitled, "Safe Deposit Notarial Certificate of Contents", paid the overdue rent on the box and retrieved the contents of the box. However, upon perusal of the bags contents, the plaintiffs allege that the gold bars and coins were missing and filed a police report the same day.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]; Winegard v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).Summary judgment is drastic relief - it denies one party the opportunity to go to trial and should only be granted where there are no triable issues of fact (see, Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Accordingly, the focus for the Court is on issue finding, not issue determining (Hantz v. Fishman, 155 AD2d 415, 457 NYS2d 350 [2d Dept 1989]).

The defendants allege that they are entitled to summary judgment as they maintain that they exercised reasonable care in securing the box and removing its contents and that the action is barred by the terms of the parties' agreements. The defendants also claim that the plaintiffs have failed to submit proof in admissible form that proves that they owned the alleged gold bars and coins and the extent of damages cannot be determined. The defendants further claim that the plaintiffs' requests for exemplary damages and a jury trial are without merit.

Generally speaking, when a bank rents a safety deposit box to a customer, a bailor/bailee relationship is created (see, Sichel v. Central Federal Savings & Loan Association, FSB, 143 Misc 2d 42, 539 NYS2d 257 [Sct NY County 1989]; see also, Goldbaum v. Bank Leumi Trust Co., 545 Fsupp 1008 [SDNY 1982]). However, this bailor/ bailee relationship can be distinguished from the traditional bailor/bailee relationship, in that, although the bank retains possession of the safety box, the bailor also retains the ability to access its property on the premises of the bailee (see, Sichel v. Central Federal Savings & Loan Association, FSB, 143 Misc 2d 42, supra ). Furthermore, the bailor is the only individual with the knowledge of the contents of the box and the bailee has no way of knowing what is placed into the box and removed therefrom. Here, both plaintiffs, Alan Golomb and Perla Golomb had access to the safety deposit box. [*3]

"Under New York Law, an inference of negligence arises if the bailee fails to return the bailor's property" (Singer Co. v. Stott and Davis Motor Express, Inc., 79 AD2d 227, 231, 436 NYS2d 508 [4th Dept 1981]), and the bailee must rebut the inference of negligence (see, US v. Mowbray's Floating Equip. Exch., Inc., 601 F2d 645 [2nd Cir. 1979]). The rationale for this rule is that the bailee ordinarily retains complete dominion over the bailor's property, thus is responsible for the items. However, in this particular circumstance, the bailor itself has access to the safety box at all times and only the bailor has knowledge of the contents of such box. Since this is the situation, case law has found this inference of negligence on the bailee to be inequitable, as the bank does not retain exclusive control over the safety deposit box and this Court agrees (see, Barclift v. FDIC, 1995 WL 87282 [EDNY 1995]). Accordingly, the bailee must make a prima facie case of the bank's alleged negligence.

Here, the bank asserts that the plaintiffs have failed to make out a prima facie claim of negligence, as the bank complied with the terms of its agreement with the plaintiffs, as well as the stringent requirements of Banking Law §335. The defendants, in support of their motion for summary judgment, submit an affidavit of Ralph DeLucia, and Aminah Ellis, as well as depositions of Alan E.Golomb and Perla Golomb. The defendants also attach the "Safe Deposit Notarial Certificate of Contents", the Safe Deposit Agreement of Savings of America, as well as the North Fork Bank account agreement. The defendants further attach the November 4, 2004, certified letter, along with a photocopy of the envelope that was stamped as undeliverable.

Paragraph six (6) of the original Safe Deposit Box Agreement, entered into between the plaintiffs and Savings of America, reads, in relevant part as follows:

... If the amount due for the rental herein shall not have been paid for one year, or if I shall not have removed the contents thereof within thirty days of the termination of this lease for any reason other than for non-payment of rent, the Association may, at the expiration of such period, send to me, by registered or certified mail, return receipt requested, a notice in writing in a security close postpaid letter, directed to me at my last know post-office address, as recorded upon the books of the lessor as recorded on the books of the Association, notifying me that if the amount due for rental is not paid within thirty days from date and/or if the contents thereof are not removed within thirty days from date, the Association may, at any time thereafter, cause such safe deposit box to be opened in the presence of a notary public and of any officer of the Association, and the contents thereof to be inventoried and removed from such safe deposit box and such contents sold at public auction, all in accordance with the applicable provisions of law then pertaining.

The agreement above should be read in conjunction with Banking Law §335, which is the relevant statutory law governing banking institutions, as referenced in the agreement above. Banking Law §335 is entitled "Special remedies where rental of safe deposit box is not paid or when safe deposit box is not vacated on termination of lease". Banking Law §335 reads in pertinent part as follows:

Every lessor shall be entitled to the following special remedies: [*4]

(a) If the amount due for the rental of any safe deposit box let by any lessor shall not have been paid for one year, or if the lessee thereof shall not have removed the contents thereof within thirty days from the termination of the lease therefor for any reason other than for non-payment of rent, the lessor may, at the expiration of such period, send to the lessee of such safe deposit box by registered or certified mail, return receipt requested, a notice in writing in a securely closed postpaid letter, directed to such person at his last known post-office address, as recorded upon the books of the lessor, notifying such lessee that if the amount due for the rental of such safe deposit box is not paid within thirty days from date, and/or if the contents thereof are not removed within thirty days from date, the lessor may, at any time thereafter, cause such safe deposit box to be opened, and the contents thereof to be inventoried and removed from such safe deposit box.

(b) At any time after the expiration of thirty days from the date of mailing such notice, and the failure of the lessee of the safe deposit box to pay the amount due for the rental thereof to the date of payment, and/or remove the contents thereof, the lessor may, in the presence of a notary public and of any officer of the lessor or any other employee of the lessor designated for such purpose by the lessor, cause such safe deposit box to be opened, and the contents thereof, if any, to be removed and inventoried. Such contents shall be retained by the lessor for safe-keeping for a period of not less than two years unless sooner removed by the lessee of the safe deposit box so opened. The charge for such safe-keeping shall not exceed the original rental of the safe deposit box so opened. The notary public shall file with the lessor a certificate under seal, which shall fully set out the date of the opening of such safe deposit box, the name of the lessee of such safe deposit box and a list of the contents, if any.

(c) A copy of such certificate shall within ten days after the opening be mailed by registered or certified mail, return receipt requested, to the lessee of the safe deposit box so opened, at his last known post-office address, in a securely closed postpaid letter, together with a notice that the contents will be kept, at the expense of the lessee, by the lessor for a period of not less than two years. Upon the payment of all rentals due at the time of the opening of the safe deposit box, the cost of the opening thereof, the fees of the notary public for issuing his certificate thereon, and the payment of all further charges and costs of safe-keeping such contents for the period since the opening of the safe deposit box, the lessee may require the delivery of such of the contents set out in such certificate as have not been sold pursuant to paragraph (d) of this subdivision or destroyed pursuant to paragraph (f) of this subdivision, or become abandoned property.

The defendants, in their moving papers, state that they did not receive rental payments from the plaintiff's for two years (see, Banking Law §335[a]). The defendants then notified the plaintiffs, via certified mail, to the plaintiffs' last know post-office address, as recorded upon the books of the lessor that the rental was in arrears and the consequences of failing to rectify the situation (see, Id.). They then drilled open the box, after waiting the required thirty (30) days from notification, "... in the presence of a notary public and of any officer of the lessor or any other employee of the lessor designated for such purpose by the lessor, cause such safe deposit box to be opened, and the contents thereof, if any, to be removed and inventoried" (see, Banking Law §335[b]). [*5]

Accordingly, the defendants have made a prima facie case for summary judgement, as they have proven that they complied with the agreement and the banking law. Therefore, the burden now shifts to the plaintiffs to raise a triable issue of fact. Moreover, a party opposing a summary judgment must lay bare his proof to demonstrate the existence of a genuine material issue of fact (see, Illumalights Manufacturing, Inc. v. Neo Ray Products, Inc., 124 AD2d 644, 507 NYS2d 899 [2d Dept 1986]). Only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat a summary judgment motion (see, Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]).

The plaintiffs, in opposition, submit an affirmation of Alan Golomb, who is a party to the action. Where counsel is a party, an affidavit, rather than an affirmation is required (see, CPLR §2106; Matter of Flaton v. Caso, 86 Misc 2d 695, 383 NYS2d 166, mod. on other grounds 54 AD2d 752, 387 NYS2d 710 [2d Dept 1970]; Schutzer v. Suss-Kolyer, 57 AD2d 613, 393 NYS2d 776 [2d Dept 1977]; Matter of Sassower v. Greenspan, Kanarek, Jaffe & Funk, 121 AD2d 549, 504 NYS2d 31 [2d Dept 1986]). However, the plaintiff, Perla Golomb, submits an affidavit whereby she states, "I have read his [Alan E. Golomb] attached affirmation and attest to the facts stated herein" (see, Perla Golomb Affidavit, ¶1). Since Mrs. Golomb refers to and incorporates the facts of her husband's affirmation in her affidavit, this Court will review Mr. Golomb's statement of facts. Moreover, the defendants do not raise this defect in their reply papers, therefore, this Court can consider the affirmation in its entirety as the defect was waived (see, Scudera v. Mahbubur, 299 AD2d 535, 750 NYS2d 644 [2d Dept 2002]; see also, Teig v. First Unum Ins. Co., 282 AD2d 669, 723 NYS2d 707 [2d Dept 2001]).

In his affirmation, Mr. Golomb, puts forth a plethora of arguments in an attempt to raise a triable issue of fact. Amongst his many theories, he alleges that the bank failed to comply with Banking Law §335(c), which requires the bank to send a certified return receipt correspondence to the plaintiffs, along with the notarized certificate of contents, within ten (10) days of opening and inventorying the safety deposit box. The bank admits that it did not send this additional notice. Mr. Golomb alleges that had the additional notice been sent, he or his wife might have received it and claimed the property earlier. However, this argument is disingenuous, as the bank only had the Golombs old address which was no longer correct. The first notification sent to the Golombs was returned to the bank as undeliverable and a forwarding address was not provided. Thus, any future correspondence sent by the bank would not have reached the Golombs. Furthermore, the Golombs should have updated their personal information with the bank, after moving, as provided in the North Fork account agreement.

The Golombs also maintain that the bank should have called the number on file at the bank in an attempt to contact them prior to opening the box. However, this argument is without merit as Banking Law §335 and the safety deposit box agreement entered into by the Golombs simply requires the bank to send certified mail, return receipt letters to the "last known post-office address, as recorded upon the books of the lessor on file". The bank was not required to do anything beyond this to contact the Golombs. [*6]

In a further attempt to raise a triable issue of fact, the plaintiffs suggest that having two locksmiths present when the box was opened is indicative of negligence. The plaintiffs also claim that no criminal check was conducted to ensure that the locksmiths had no criminal history, therefore, they allege that the locksmiths were not trustworthy. They allege this, despite the fact that two bank employees were present when the box was opened.

Most troubling to this Court is Mr. Golomb's continued reference to the allegedly missing items as the "gold coins" in his affirmation. He fails to refer to the bars consistently, which leaves this Court to wonder if Mr. Golomb is absolutely certain what was in the safety deposit box.

The plaintiff, Perla Golomb's affidavit is self serving and conclusory (see, Kowalsky v Khan, 279 AD2d 556, 719 NYS2d 666 [2001]). Mrs. Golomb states, "I hereby reaffirm under oath that our Krugerands and gold bars were in our safe deposit box when I went into the box for the last time before we moved; and they were not removed. Someone took them when our box was broken open whether defendants or one of the two men they let into the vault on January 20, 2005..." (see, Affidavit of Perla Golomb, ¶10). Mere conclusory allegations of the existence of a triable issue of fact are insufficient to defeat an otherwise well founded motion for summary judgment (see, Bowman v. Chasky, 2006 NY Slip Op 4978, 817 NYS2d 153 [2d Dept]; Castro v. New York University, 5 AD3d 135, 773 NYS2d 29 [1st Dept 2004]; Grullon v. City of New York, 297 AD2d 261, 747 NYS2d 426 [1st Dept 2002]). The affidavit contains only self-serving statements which are conclusory and irrelevant to the issue at bar. Thus, there is a failure to tender evidentiary proof in admissible form.

The plaintiffs have also attached, in support of their opposition, an affidavit of Melvin N. Borrowka, a friend and colleague of the Golombs. He states "I am advised by Alan that he was purchasing gold coins from a gold dealer, through his neighbor Allan Dampf. Alan and I then purchased several gold coins together the same way. I still have my coins" (see, Borowka Affidavit, ¶3). This affidavit does not appear to be based upon personal knowledge, rather Mr. Borowka is stating that he was "advised" by Mr. Golomb of the facts. In addition, an affidavit by Allan Dampf, the Golombs' neighbor and dentist when they resided in Melville, is submitted to prove that the Golombs had purchased gold coins and bars through him in the early 1980's. He states, "... at Alan Golomb's request, I purchased for him a number of gold coins and bars, specifically six one ounce gold Krugerands and two one ounce Canadian gold coins. I paid my gold dealer; and Alan reimbursed me." (see, Dampf Affidavit, ¶3). Notably, Mr. Dampf does not provide the name of the gold dealer in his affidavit. Both of these affidavits lack probative value and fail to raise an issue of fact, as they fail to connect the alleged purchase of gold coins and bars to the placement of them into the bank.

The Golombs have failed to come forward with any evidence that raises a triable issue of fact requiring a plenary trial. Accordingly, the defendants' motion for summary judgment is granted and the complaint is hereby dismissed.

So ordered: [*7]

DISTRICT COURT JUDGE

Dated:September 27, 2006

CC:

SF/mp