| Cardino v J.P. Morgan Chase Bank, N.A. |
| 2016 NY Slip Op 07619 |
| Decided on November 16, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2014-09339
(Index No. 901/11)
v
J.P. Morgan Chase Bank, N.A., et al., respondents, et al., defendant.
The Margiotta Law Firm, Bay Shore, NY (Paul J. Margiotta of counsel), for appellant.
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, NY (Thomas E. Stagg and Michelle E. Tarson of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated August 7, 2014, which granted the motion of the defendants J.P. Morgan Chase Bank, N.A., and J.P. Morgan Chase & Co., for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants J.P. Morgan Chase Bank, N.A., and J.P. Morgan Chase & Co., for summary judgment dismissing the complaint insofar as asserted against them is denied.
The plaintiff commenced this action against, among others, the defendants J.P. Morgan Chase Bank, N.A., and J.P. Morgan Chase & Co. (hereinafter together Chase), alleging that Chase breached its contract with her by permitting unauthorized transfers of funds from certain accounts she held with Chase. Chase moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff failed to timely comply with its Account Rules and Regulations. According to Chase, pursuant to its Account Rules and Regulations, the plaintiff was required to notify Chase in writing of any unauthorized item or error appearing on her statement "within 30 days of the date on which the unauthorized item, or the Account statement that contained a description of the unauthorized item or error, was mailed" to her. The Supreme Court granted Chase's motion. We reverse.
Contrary to the Supreme Court's determination, Chase failed to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Under the circumstances of this case, triable issues of fact exist, inter alia, as to whether the plaintiff was, in fact, bound by the Account Rules and Regulations relied upon by Chase (cf. Clemente Bros. Contr. Corp. v Hafner-Milazzo, 23 NY3d 277, 289), and, if so, whether a separate provision contained therein, which relates specifically to Electronic Funds Transfer Services, controls. Accordingly, Chase's motion should have been denied, regardless of the sufficiency of the opposing papers (see [*2]Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
RIVERA, J.P., AUSTIN, HINDS-RADIX and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court