Order, Supreme Court, New York County, entered May 23, 1978, and judgment entered May 25, 1978, denying plaintiff’s motion for summary judgment on the fourth cause of action and granting defendant’s cross motion for summary judgment severing and dismissing the first, second, third and fifth causes of action is affirmed, without costs and without disbursements. The parties have limited their arguments to the fourth cause of action. Plaintiff was issued a check by the Prins Diamond Company drawn on the defendant bank. On October 21, 1976, plaintiff deposited the check in its account at the National Bank of North America (hereinafter referred to as National) who forwarded same through the clearing house to defendant who received it on Friday, October 22, 1976, marked it "insufficient funds” after canceling its "paid” stamp and forwarded the check to the clearing house on Monday, October 25, 1976. The clearing house forwarded the check to National on October 26, 1976. The first, second, third and fifth causes of action involve this transaction. The fourth cause of action, or the current bone of contention, derives from the fact that on November 4, 1976, the defendant instructed the plaintiff to redeposit the check which the plaintiff did through National. National, in turn, forwarded the check directly to defendant, bypassing the clearing house. Defendant returned the check on November 16, 1976, still not accepted. During the course of these exercises, the original drawer of the check made an assignment for the benefit of creditors and plaintiff received no payment on the instrument. Plaintiff now seeks to recover the amount of the check from defendant. Plaintiff argues that defendant took so long to return the check (12 days) that it thereby not only violated a statute, but prevented plaintiff from taking other methods to protect itself. The statute in question is section 4-302 of the Uniform Commercial Code, "Payor Bank’s Responsibility for Late Return of Item” which requires return to be made at a specified time and sets the measure of damage: "In the absence of a valid defense such as breach of a presentment warranty (subsection (1) of Section 4-207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of (a) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depository bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depository bank, does not pay or return the item or send notice of dishonor until after its midnight deadline”. Subdivision (h) of section 4-104 of the Uniform Commercial Code defines "Midnight deadline” as midnight of its next banking day following the banking day on which it receives the relevant item or from which the time for taking action commences to run, whichever is later. For purposes of the fourth cause of action, then, defendant was a payor bank and had not returned the check by the midnight deadline as an uncollectible. Plaintiff chooses to construe the applicable section of the Uniform Commercial Code *660strictly, and inveighs against banks making their own "private little rules”. Defendant, on the other hand, sees the delay as an agreement embodied in the customs and practice of banks and also pointed out that plaintiff’s bank forwarded the once-dishonored check to defendant with a covering letter instructing them to remit their cashier’s check when paid. Defendant considers this an instruction to hold the check as long as practicable without regard to the "Midnight deadline”. This notice does not establish a custom or practice among banks and the request to settle "when paid” does not seem to constitute an agreement among banks to waive or otherwise ignore the midnight deadline. Section 4-103 of the Uniform Commercial Code does permit an agreement to determine the standards of a bank’s responsibility; however the existence of such an agreement within the framework of customs and practices of banks would be solely within the knowledge of the banks. Questions arise here as to accommodation customs and practices of the banking community, and as to whether the resubmission of a check by one bank directly to another with an "advice to customer” with a "when paid” clause, is in fact an agreement to set aside the midnight deadline requirement of the statute. Insufficient facts have been presented to establish that there are no issues which would justify summary judgment. Concur—Kupferman, J. P., Evans, Lane and Sandler, JJ.