Visalli v Giannattasion

Annotate this Case

Download PDF

Visalli v Giannattasion 2014 NY Slip Op 33792(U) December 16, 2014 Supreme Court, Rockland County Docket Number: 031344/2014 Judge: William A. Kelly Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. INDEX NO. 031344/2014 [*FILED: ROCKLAND COUNTY CLERK 12/16/2014 07:50 A 1] NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/16/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND PRESENT: HON. WILLIAM A. KELLY SUPREME COURT JUSTICE ------ ---- ------------- -- ------------------------ -.- ------ -- -- -x AMELIA VISALLI, individually and MELINDA WRIGHT, as EXECUTOR OF THE ESTATE OF ALFRED VISALLI, l Plaintiffs, -against- Index No. 031344/2014 DECISION & ORDER ANTHONY GIANNATTASION, J.P. MORGAN CHASE, N.A., Defendants. --------------------------------------------------------------x The following papers were read on the motion of the defendant for an Order, pursuant to CPLR Rule 3211, dismissing plaintiff's complaint: Notice of Motion - Affirmation - Memorandum of Law I-3 Affirmation in Opposition - Affidavit in Opposition 4-5 Reply Memorandum of Law 6 Upon the foregoing papers it is hereby ORDERED that the motion is granted to the extent set forth herein. [* 2] "In the context of a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19 (2005) (citing Goshen v Mutual Life Ins. Co. ofN.Y., 98 N.Y.2d 314, 326 (2002)). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. Id. "Initially, the sole criterion is whether the pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (citations omitted)." Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 (1977). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute_ exists regarding it, again dismissal should not eventuate (citations omitted)." Id. The instant action concerns unauthorized ATM withdrawals by defendant Giannattasio, a former employee of defendant Chase. In 2009, due to suspected fraud, the plaintiffs instructed defendant Chase to close the plaintiffs' account. According to the complaint, on several occasions, Chase made assurances that the account would be closed. On October 4, 2011, the plaintiffs notified Chase that withdrawals were still being made from the account. On October I 7, 2011, defendant Giannattasio was arrested. He was subsequently convicted and ultimately convicted of stealing from the account. 2 [* 3] With respect to the first cause of action, the plaintiff successfully plead a prima facie case of breach of contract based upon the alleged contractual agreement to "release funds from the accounts only upon receipt of properly authorized and authenticated payment orders." The second cause of action alleges a violation of NY UCC §4-A-201. However, that section does not apply to transfers covered by the Electronic Fund Transfer Act. Banque Worms v. BankAmerica International, 77 N.Y.2d 362, n. 4 ( 1991 ). "The purpose of the EFTA is the provision of "a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund and remittance transfer systems," with the "primary objective" being "the provision of individual consumer rights." The statute covers a wide range of electronic money transfers-from ATM withdrawals and debit-card payments to banking by phone, and subjects them to a litany of procedural requirements designed to protect consumers from transactions made in error or without their consent." Wike v. Vertrue, Inc., 566 F.3d 590 (6th Cir. 2009). As the EFTA covers the complained of transactions, the UCC does not apply. The causes of action alleging negligence and breach of fiduciary duty must also be dismissed. As set forth above, the unauthorized transactions are governed by the contractual relationship between the bank and the depositor. "Where, as in the case before us, the contractual relationship occupies fully the rights and responsibilities of the parties to the account on deposit, there exists a completely enforceable and well understood contractual undertaking. The breach of such contract, long recognized and enforced at law according to a consistent policy of the court, and in consonance with the accepted custom of the business community, should not be treated as some other kind of 'wrong' separately actionable." Stella 3 [* 4] Flour & Feed Corp. v. National City Bank, 285 A.D. 182 (1st Dep't 1954); See also Gonik v. Israel Discount Bank of New York, 2010 WL 9115345 (Sup. Ct. N.Y. 2010). Finally, the fourth cause of action alleging a violation of EFT A is untimely. 15 U .S.C.A. § l 693m(g) provides that "any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation." In this case, the last violation occurred in October of 2011. The instant action was not commenced until March 20, 2014. Accordingly, with the exception of the first cause of action, the complaint is dismissed. This Decision shall constitute the Order of the Court. ENTER Dated: New City, New York December 16, 2014

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.