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March 27, 1991


The opinion of the court was delivered by: Sweet, District Judge.


Defendant Chemical Bank ("Chemical") has moved pursuant to Rules 54 and 58 of the Federal Rules of Civil Procedure for entry of judgment in its favor in accordance with the opinion dated February 16, 1990, which granted its motion for summary judgment. Plaintiff Lund's, Inc. ("LI") has renewed its motion for reconsideration of the February 16 opinion. For the following reasons, the motion for reconsideration is granted and on reconsideration the February 16 opinion is affirmed, with judgment to be entered in favor of Chemical pursuant to the earlier opinion.


The parties, facts, and prior proceedings in this case are set forth in detail in the numerous prior opinions, familiarity with which is assumed. Lund v. Chemical Bank, 665 F. Supp. 218, (S.D.N.Y. 1987) ("Lund's I") and Lund v. Chemical Bank, 675 F. Supp. 815 (S.D.N.Y. 1987) ("Lund's II"), rev'd, Lund's, Inc. v. Chemical Bank, 870 F.2d 840 (2d Cir. 1989) ("Lund's III"), on remand, Lund v. Chemical Bank, 84 Civ. 1621, 1990 WL 17711 (S.D.N.Y. February 16, 1990) ("Lund's IV").

In Lund's IV, summary judgment was granted to Chemical principally on the basis of the then-recent New York state court decision in State v. Barclays Bank of New York, N.A., 151 A.D.2d 19, 546 N.Y.S.2d 479 (3d Dep't 1989) ("Barclays I").On March 6, LI moved for reconsideration of Lund's IV in light of the fact that the Court of Appeals of New York had granted review in Barclays I. On May 4, 1990 that motion was granted by memorandum endorsement "pending the determination of the Barclays Bank case in the Court of Appeals."

On October 18, 1990 the Court of Appeals issued its opinion affirming Barclays I. State v. Barclays Bank of New York, N.A., 76 N.Y.2d 533, 561 N.Y.S.2d 697, 563 N.E.2d 11 (1990) ("Barclays II"). Chemical thereupon moved for entry of judgment pursuant to the decision in Lund's IV, and LI in response argued in support of its original motion for reconsideration of that decision.*fn1 Oral argument was heard on November 30, 1990.


1.  The Check Was Not Constructively Delivered to LI.

In light of Barclays II, the only issue presented here is whether or not check no. 56853 for $400,000 ("the Check"), drawn on Chemical by Laidlaw, Adams & Peck, Inc. ("Laidlaw") originally payable to Flight Transportation Corporation ("FTC"), was constructively delivered to LI when it was endorsed by FTC's secretary payable to LI and given to William Rubin ("Rubin"), FTC's president to deliver to LI.*fn2

In Lund's IV, this question was considered and decided in Chemical's favor, on the basis of the Barclays I discussion of the concept of constructive delivery: "[Barclays I] contemplates that there can be 'constructive' delivery, but such delivery occurs when the check is physically delivered 'into the hands' of a co-payee or an agent of the payee." Lund's IV at 8 (citing Barclays I, 151 A.D.2d at 21, 546 N.Y. So.2d at 481).

The Court of Appeals confirmed that no constructive delivery had occurred in Barclays II, specifically distinguishing the situations in which an instrument is given to an agent of the payee, 76 N.Y.2d at 539, 561 N.Y.S.2d at 700, 563 N.E.2d at 14, or to "a nonagent third party either in its capacity as sole payee with intended delivery to plaintiff or as plaintiff's copayee." Id. at 539 n. 4, 561 N.Y.S.2d at 700 n. 4, 563 N.E.2d at 14 n. 4 (distinguishing Charmglow Products v. Mitchell St. State Bank, 687 F. Supp. 448 (E.D.Wis. 1988)). As regards this factor, Rubin was neither the payee nor co-payee of the Check, and LI has presented no evidence — aside from its belated ratification theory, discussed below — that he was LI's agent and not merely its purported agent under the forged power of attorney.

LI's argument rests primarily on Wolfin v. Security Bank, 170 A.D. 519, 156 N.Y.S. 474 (1st Dep't 1915), aff'd 218 N.Y. 709, 113 N.E. 1068 (1916). In that case, the drawer of the check in question had given it directly to the named payee after requiring the payee to endorse the check to a third party, and directed that the payee deliver the check to the third party. This was held to constitute constructive delivery to the third party which entitled that party to sue for wrongful payment of the check. LI asserts that the Barclays II court indicated that Wolfin is still good law, and that under Wolfin the Check here was constructively delivered to LI.

As for the constructive delivery from FTC to LI, the Barclays II court clarified its view of Wolfin: "Unlike the case at bar . . . in Wolfin the drawer retained no control after the Check was delivered to the named payee as a fully negotiable instrument." 76 N.Y.2d at 540, 561 N.Y.S.2d at 700, 563 N.E.2d at 14 (emphasis added). Here the Check, as endorsed by FTC payable to LI was not "fully negotiable" until delivery to LI. As Rubin was not the named payee under this ...

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