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

F. Javier MONREAL, M.D., Plaintiff-Respondent, v. FLEET BANK, Defendant-Appellant.

Decided: July 09, 1999

PRESENT:  PINE, J.P., HAYES, PIGOTT, JR., SCUDDER and BALIO, JJ. Christopher P. Schueller, Rochester, for defendant-appellant. Richard C. Engel, Syracuse, for plaintiff-respondent.

Plaintiff was the victim of embezzlement by his bookkeeper from 1988 through May 10, 1995.   It is undisputed that defendant mailed monthly statements of accounts and canceled checks to plaintiff beginning in 1989.   Plaintiff notified defendant of the forged and altered checks on May 18, 1995 and commenced this action on January 14, 1997, alleging negligence and breach of contract.

Supreme Court erred in denying in part defendant's cross motion for summary judgment dismissing the complaint, determining that there is an issue of fact whether defendant exercised ordinary care in paying items that were the subject of bank statements sent by defendant to plaintiff from May 18, 1994 to May 18, 1995.   Plaintiff is precluded from asserting that his signature was unauthorized because defendant was not notified within one year from the time the first account statement containing forged and altered checks was sent to plaintiff (see, UCC 4-406[4];  Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280, 285, 617 N.Y.S.2d 452, 641 N.E.2d 1070;  Sears Coop. Sav. Trust v. Norstar Bank, 203 A.D.2d 904, 612 N.Y.S.2d 722).   We modify the order, therefore, by granting the cross motion in its entirety and dismissing the complaint.

Order unanimously modified on the law and as modified affirmed with costs to defendant.


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