APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
December 23, 2011
1ST SOURCE BANK, D/B/A TRUCKERS BANK PLAN,
POTAMKIN CADILLAC-BUICK-CHEVROLET- GEO, LTD.,
appeals from a judgment of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), entered April 27, 2010, after a non-jury trial, in favor of plaintiff and awarding it damages in the principal sum of $31,228.01.
1st Source Bank v Potamkin Cadillac-Buick-Chevrolet- Geo, Ltd.
Decided on December 23, 2011
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
Judgment (Arthur F. Engoron, J.), entered April 27, 2010, affirmed, with $25 costs.
Giving due deference to the trial court's findings of fact and its assessment of the witnesses' credibility, we find no cause to disturb the judgment awarded in plaintiff's favor. Based upon the documentary and testimonial evidence establishing defendant's knowledge of the nature and purpose of the loan made by plaintiff to the prospective purchaser of the automobiles, nonparty Maria Aguilar, and what the court found to be the "clear, consistent, credible testimony" of plaintiff's witness, the court was warranted in imposing liability upon defendant for money had and received based upon its conduct in unilaterally transferring the unused loan proceeds to Aguilar without proper notification to plaintiff (see Board of Educ. of Cold Spring Harbor Cent. School Dist. v Rettaliata, 78 NY2d 128, 138 ; Parsa v State of New York, 64 NY2d 143, 148 ). That defendant did not itself retain the loan proceeds does not serve to absolve it of liability. "It would be a strange contradiction if one bound to inquire but failing to do so could defend his subsequent misapplication of funds on the ground of ignorance which followed on the absence of inquiry" (Federal Ins. Co. v Groveland State Bank, 44 AD2d 182, 189 , mod on other grounds 37 NY2d 252, 258 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 23, 2011
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