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Tyrell Morgan v. Citibank

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


January 14, 2013

TYRELL MORGAN,
APPELLANT,
v.
CITIBANK, N.A.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered October 30, 2008.

Morgan v Citibank, N.A.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2013

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action to recover damages allegedly resulting from defendant's wrongful payment of checks drawn on plaintiff's account with defendant, which checks bore his forged signature as drawer. When plaintiff had opened his checking account with defendant, he had signed an agreement wherein he had consented to be bound by the terms of a client manual which had been given to plaintiff. The manual provides that plaintiff was required to notify defendant, within 30 days after it had sent or made available to plaintiff the account statement and accompanying items, of any errors, discrepancies, or unauthorized transactions appearing thereon not involving electronic fund transfers. The client manual further provides that plaintiff must commence an action within one year after the date of the first account statement on which, among other things, an unauthorized transaction appears. In March 2004, plaintiff submitted an affidavit of forgery to defendant indicating that checks in the total sum of $19,950 contained his forged signature as drawer. In a letter to plaintiff dated June 22, 2004, defendant denied plaintiff's request for reimbursement. Approximately three years later, in December 2007, plaintiff commenced this action.

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (5) on the ground, among others, that the action was barred by the one-year period of limitations in accordance with the terms contained in the client manual. Plaintiff opposed the motion, arguing that the agreement was unenforceable as a contract of adhesion, and unconscionable, and that he should not be bound by the shortened limitations period contained therein. The Civil Court granted defendant's motion to dismiss, finding that, after plaintiff had notified defendant of the unauthorized transactions, he had waited more than three years after defendant had denied his request for reimbursement to commence this action and that the agreement between the parties was not unconscionable or unreasonable.

Pursuant to CPLR 213 (2), the claim asserted against defendant, based on defendant's allegedly wrongful payment of plaintiff's checks bearing his unauthorized signature, is governed by a six-year statute of limitations (see American Fed. Group v Union Chelsea Natl. Bank, 279 AD2d 433 [2001]). However, a statutory limitations period may be shortened by agreement of the parties (see CPLR 201; Assured Guar. [U.K.] Ltd. v J.P. Morgan Inv. Mgt. Inc., 80 AD3d 293 [2010]). Under the circumstances presented, we find that the shortened limitations period of one year is enforceable, as there is no proof that the agreement constituted a contract of adhesion or was the product of overreaching, or that the altered period is unreasonable (see Sablosky v Gordon Co., 73 NY2d 133 [1989]; Gillman v Chase Manhattan Bank, 73 NY2d 1, 10 [1988]; Assured Guar. [U.K.] Ltd. v J.P. Morgan Inv. Mgt. Inc., 80 AD3d 293; Matter of Incorporated Vil. of Saltaire v Zagata, 280 AD2d 547 [2001]; Timberline Elec. Sup. Corp. v Insurance Co. of N. Am., 72 AD2d 905 [1975], affd 52 NY2d 793 [1980]). Consequently, the provision in the parties' agreement providing for a one-year limitations period in which to bring suit was voluntarily agreed to between the parties and is enforceable.

Accordingly, the order granting defendant's motion to dismiss the complaint is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: January 14, 2013

20130114

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