Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered July 23, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 10, 2011
PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ
The order denied plaintiff's motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action to recover the principal sum of $9,426.66, plaintiff's complaint alleged, among other things, that an account which defendant maintained with plaintiff bank was overdrawn by said sum. Defendant denied that the account was overdrawn. In support of a motion for summary judgment, plaintiff submitted proof establishing that defendant had deposited six "international postal money orders," in the total sum of $5,700, into his account at plaintiff bank on June 30, 2005. It is undisputed that defendant withdrew the sum of $4,900 from this account on July 1, 2005. Thereafter, defendant deposited another six "international postal money orders," in the total sum of $5,700, on July 6, 2005, and withdrew the sum of $5,300 on July 8, 2005. Peter D'Angelo, an officer of plaintiff bank, alleged in his supporting affidavit that all of the money orders were returned as counterfeits, causing an overdraft in defendant's account in the sum of $9,426.66, that defendant was unjustly enriched, and that plaintiff is a holder in due course of the instruments.
In opposition to the motion for summary judgment, defendant asserted that he deposited the postal money orders into his account and waited several days, until the bank indicated to him that the money orders had cleared, before withdrawing funds from his account. He argued further that plaintiff should have known that all of the instruments were counterfeits at the time he presented them for deposit.
The Civil Court denied the motion for summary judgment without setting forth detailed findings of fact or conclusions of law.
Contrary to plaintiff's contention, plaintiff is not a holder in due course of the counterfeit money orders, since a review of all of the instruments reveals that they are not "payable to order or to bearer" (see UCC 3-104  [d]; 3-805; Pascal v Tardera, 123 AD2d 752 ; see also State v Entringer, 246 Wis 2d 839, 840 ), and, in his opposition to the motion, defendant raised issues of fact which require a trial. Plaintiff's contention, that defendant warranted the genuineness of the money orders (see UCC 3-417), is raised for the first time on appeal and will not be considered (see Stanley Weisz, P.C. Retirement Plan v Holubar, 275 AD2d 704 ).
Accordingly, the order denying plaintiff's motion for summary ...