(dissenting in part). I believe that HSBC is not entitled to summary judgment on GTH’s negligent misrepresentation claim.
Under New York’s Uniform Commercial Code, “[i]f a collecting bank has made provisional settlement with its customer for an item and itself fails by reason of dishonor, suspension of payments by a bank or otherwise to receive a settlement for the item which is or becomes final,” the bank may revoke the settlement and charge back the amount of any credit given for the item to the customer’s account (UCC 4-212 [1]). “The right to charge-back is not affected by . . . failure by any bank to exercise ordinary care with respect to the [check] but any bank so failing remains liable” (id. at 4-212 [4] [b] [emphasis supplied]). Thus, a bank has a duty to exercise ordinary care when dealing with its customers (Aikens Constr. of Rome v Simons, 284 AD2d 946, 947 [4th Dept 2001]). The term “ordinary care” is used with its normal tort meaning and not in any special sense relating to bank collections. A customer may prove a bank “lacked ordinary care by presenting any type of proof that the bank failed to act reasonably” (Putnam Rolling Ladder Co. v Manufacturers Hanover Trust Co., 74 NY2d 340, 346 [1989]). Further, section 4-103 (1) states that “[t]he effect of the provisions of this Article may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such lack or failure.”
In this case, GTH alleges that on September 27, 2007, David A. Trager, a partner at GTH, telephoned his contact at HSBC, Frances Scott, to inquire about the status of the Citibank check. Trager and Scott had a five-year banking relationship, whereby Trager would call Scott to confirm that checks deposited into GTH’s trust account had cleared and were available for disbursement. Scott informed Trager that the Citibank check had “cleared” and that the funds were available to be wired to another account. Relying in good faith on that statement, Trager asked Scott to wire proceeds of the check, which she did.
HSBC makes much of the fact that the word “cleared” is not found in the UCC and the majority finds it to be ambiguous. However, UCC 1-205 entitled “course of dealing and usage of trade,” defines “usage of trade” as encompassing “any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question” (UCC *5841-205 [2]). The term “cleared” is used liberally in the banking business. Indeed, the Federal Trade Commission in a bulletin addressed to consumers states that “[i]t’s best not to rely on money from any type of check . . . unless you know and trust the person you’re dealing with or, better yet — until the bank confirms that the check has cleared” (Federal Trade Commission, FTC Facts for Consumers, Giving the Bounce to Counterfeit Check Scams, Jan. 2007, available at http://www.ftc.gov/bcp/edu/ pubs/consumer/credit/cre40.pdf, cached at http:// www.nycourts.gov/reporter/webdocs/cre40.pdf [emphasis added]). Therefore, I disagree with the majority’s position that relying on this statement was unreasonable as a matter of law (see majority op at 580).* I suspect many business professionals would have done the same thing as Trager.
Viewing the facts in the light most favorable to GTH, which we are required to do on this motion for summary judgment, GTH raises questions of fact as to whether HSBC failed to exercise ordinary care when Scott misrepresented the status of the check to Trager (see JP Morgan Chase Bank, N.A. v Pinzler, 28 Misc 3d 1214[A], 2010 NY Slip Op 51324[U] [Sup Ct, NY County 2010]; JP Morgan Chase Bank, N.A. v Cohen, 26 Misc 3d 1215[A], 2009 NY Slip Op 52725[U] [Sup Ct, Albany County 2009]).
Counterfeit check scams are pervasive. That Citibank could not recognize one of its own checks as counterfeit is testament to the seriousness of this problem within the banking industry. It is no answer that Citibank and HSBC seemed to stumble along over a period of 10 days resulting in one of their customers being bilked out of $187,750. This problem has long been known to the banks and a mere recitation of their normal practices does not, in my view, establish the appropriate standard of care in this day and age and certainly not their entitlement to summary judgment.
Equally unavailing is HSBC’s claim that the negligent misrepresentation claim must fail because GTH waived all claims *585concerning GTH’s balance information. Even if GTH waived such claims, this is not a debate about who said what to whom about an account balance. Rather, the issue is whether HSBC told GTH that the check had cleared and whether GTH could have relied on HSBC’s representations to that effect.
Chief Judge Lippman and Judges Graffeo, Read, Smith and Jones concur with Judge Ciparick; Judge Pigott dissents in part in a separate opinion.
Order affirmed, with costs.
If the term “cleared” means anything in common banking usage, it is that final settlement has occurred (see Black’s Law Dictionary [9th ed 2009], clear [defining the term as it relates to a bank as “to pay (a check or draft) out of funds held on behalf of the maker <the bank cleared the employee’s check>”; defining the term as it relates to “a check or draft” as “to be paid by the drawee bank out of funds held on behalf of the maker <the check cleared yesterday>”]).