PETER MARINO LTD v. BANK OF NEW YORK

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

PETER MARINO, LTD., et al., Plaintiffs-Appellants, v. The BANK OF NEW YORK, et al., Defendants-Respondents.

Decided: May 19, 1998

Before MILONAS, J.P., and ROSENBERGER, NARDELLI, WALLACH and RUBIN, JJ. Gary L. Rubin, for Plaintiffs-Appellants. Patricia A. Sampson, Stephen F. Ellman, for Defendants-Respondents.

Order, Supreme Court, New York County (Charles Ramos, J.), entered June 10, 1997, which, in an action to recover the amounts of checks drawn on plaintiffs' accounts over allegedly unauthorized drawer signatures and forged indorsements, insofar as appealed from as limited by the briefs, granted defendant drawee bank's motion for summary judgment dismissing the complaint as against it, and granted defendant depositary bank's motion to dismiss the second cause of action, unanimously affirmed, with costs.

The record contains no denial by the plaintiffs that Mr. Weiss was an authorized signatory on plaintiffs' accounts.   The claims against drawee Bank of New York for payment on forged drawer signatures were properly dismissed for failure to comply with the notification requirement set forth in the bank's rules and regulations (see, Retail Shoe Health Commn. v. Manufacturers Hanover Trust Co., 160 A.D.2d 47, 50, 558 N.Y.S.2d 949).

The claims against depositary Citibank for payment on forged indorsements were also properly dismissed (see, Prudential-Bache Sec. v. Citibank, 73 N.Y.2d 263, 272, 539 N.Y.S.2d 699, 536 N.E.2d 1118).   We note that plaintiffs have abandoned their argument, raised before the motion court, that the fictitious payee rule of UCC 3-405(1)(b) is inapplicable under the circumstances.

We have considered plaintiffs' other contentions and find them to be without merit.

MEMORANDUM DECISION.