SPECTRUM INC GENERAL CONTRACTING v. CAPITAL ONE BANK USA (2025)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered May 16, 2024, which denied defendant Capital One Bank USA's motion to dismiss the second and fourth causes of action in the amended complaint, unanimously reversed, on the law, with costs, and the motion granted.  The Clerk is directed to enter judgment dismissing the complaint.

The second cause of action failed to adequately allege a violation of UCC 4–A–207, which governs liability between banks and their customers when a “misdescription” of the beneficiary exists in the “originator's” or requesting customer's payment order.  As defendant notes, the amended complaint alleged a pattern of embezzlement, not any misdescriptions.

The fourth cause of action, for breach of contract, is time-barred.  Section 8(c) of the General Provisions governing the parties' agreement states that any action to enforce the agreement's terms “must be commenced within one (1) year from the date that the event giving rise” to the action occurs.  Plaintiff commenced this action after the deadline set in Section 8(c).  We also hold that Section 8(c)'s time limitation does not conflict with the waiver clause found in Section 23 of the General Provisions.

We have considered the remaining arguments and find them unavailing.