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Td Bank, N.A. As Successor To Commerce Bank, N.A v. Dale R. Javino

June 27, 2012

TD BANK, N.A. AS SUCCESSOR TO COMMERCE BANK, N.A.,
RESPONDENT, --
v.
DALE R. JAVINO,
APPELLANT.



Appeal from an order of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), entered August 25, 2010.

TD Bank, N.A. v Javino

Decided on June 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ

The order granted plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover the principal sum of $2,634.06, plaintiff moved for summary judgment, asserting that defendant had deposited a check, drawn by a third party, into his checking account at plaintiff's bank and that he had withdrawn funds from that account before the check had cleared. The check was subsequently dishonored, and plaintiff sought to charge back defendant's account and obtain a refund. The District Court granted plaintiff's motion, and we affirm.

Since there was a provisional credit for the deposited check and the check was subsequently dishonored, plaintiff was entitled to charge back the provisional credit (see UCC 4-212 [1]; Roslyn Sav. Bank v Jude Thaddeus Glen Cove Mar., 266 AD2d 198 [1999]).

We have reviewed defendant's remaining contentions and find that they are either unpreserved for appellate review or lack merit.

Accordingly, the order is affirmed.

Molia, J.P., Iannacci and LaSalle, ...


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