TORRES v. MARINE MIDLAND BANK (1999)

Supreme Court, Appellate Division, First Department, New York.

Erick Neil TORRES, Plaintiff-Appellant, v. MARINE MIDLAND BANK, Defendant-Respondent.

Decided: December 09, 1999

ELLERIN, P.J., NARDELLI, WILLIAMS, RUBIN and ANDRIAS, JJ.

Lawrence A. Goldberg, for Plaintiff-Appellant. David J. McNamara, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Elliott Wilk, J.), entered June 29, 1998, which, upon the prior grant of defendant's motion for summary judgment and denial of plaintiff's cross motion for summary judgment, dismissed plaintiff's first, second, fourth and fifth causes of action and awarded plaintiff the sum of $15,436.74 on his third cause of action, unanimously affirmed, without costs.

The motion court properly found that the handwritten provision in the 1982 compromise order, directing that monies received on the infant plaintiff's behalf be deposited into a specific money market account at defendant bank, took precedence over the order's typewritten directive to the effect that the subject funds were to be deposited into the bank's “highest interest bearing” account. This being the case plaintiff's damages were properly limited to the amount of interest due by reason of defendant bank's conceded failure to deposit the infant plaintiff's funds in a money market account between 1984 and 1992.

MEMORANDUM DECISION.

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