LEVINA v. CITIBANK (2005)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 10, 2003, which, in an action to recover for an alleged loss or theft of cash from a safe-deposit box that plaintiff rented from defendant bank, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The action was properly dismissed upon the ground that plaintiff's safe-deposit box leases with defendant prohibited the storage of cash and clearly relieved defendant of liability for loss of stored cash (Uribe v. Merchants Bank of N.Y., 91 N.Y.2d 336, 670 N.Y.S.2d 393, 693 N.E.2d 740 [1998] ).   Even if, as plaintiff argues, her lease for the first, larger box had expired and the new lease for the second, smaller box had not yet gone into effect at the time the money was taken from it, it was always plaintiff's intention to enter into the second lease, and the parties' conduct otherwise constrains a finding of an implied contract during the interim on the same terms as the first lease (see Daskolopoulos v. European Am. Bank & Trust Co., 104 A.D.2d 1020, 1021, 481 N.Y.S.2d 100 [1984] ).   We have considered plaintiff's other arguments and find them unavailing.