United States District Court, S.D. New York
STEVEN W. DAMMERS and JUDITH I. DAMMERS Plaintiff,
WELLS FARGO BANK, N.A, Defendant,
OPINION AND ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
Steven W. Dammers ("S. Dammers") and Judith I.
Dammeis ("J. Dammeis") (collectively
"Plaintiffs") commenced this action in the New York
State Supreme Court, Westchester County, by filing a Motion
for Summary Judgment in lieu of a complaint, pursuant to
C.P.L.R. § 3213, seeking recovery of monies alleged owed
on two Certificates of Deposit ("CD"). Defendant
Wells Fargo Bank, N.A. ("Defendant" or "Wells
Fargo"), removed the action from state court pursuant to
28 U.S.C. §§ 1332, 1441, and 1446. Defendant also
filed its opposition to Plaintiffs Motion for Summary
Judgment. For the following reasons, Plaintiffs' motion
§ 3213 provides, in relevant part, that a Plaintiff may
commence an action based upon an instrument for the payment
of money only or upon any judgment by serving with the
summons a notice of Motion for Summary Judgment and the
supporting papers in lieu of a complaint. C.P.L.R. §
3213 is intended to be a streamlined procedure, combining
pleading and motion practice in one step, prior to joinder of
issue, under limited circumstances. See Weissmam v.
Slnorm Deli, Inc., 88 N.Y.2d 437, 443, 646 N.Y.S.2d 308,
669 N.E.2d 242 (1996); see also Interman Indus. Prod.,
Ltd. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154,
371 N.Y.S.2d 675, 332 N.E.2d 859 (1975) ("[§] 3213
is intended to provide a speedy and effective means of
seeming a judgment on claims presumptively
meritorious")- For a document to come within the
confines of C.P.L.R, § 3213 it must be clear from the
instrument that there exists an unconditional obligation to
make payment of the nature that "a prima facie case
would be made out by the instrument and a failure to make the
payments called for by its terms." Merman Industrial
Products, 37 N.Y.2d at 155 (citing Seaman-Andwall Corp.
v. Wright Mach. Corp., 295 N.Y.S.2d 752, 31 A.D.2d 136
(1st Dept. 1968), affd29 N.Y.2d 617, 324N.Y.S.2d 410, 273 N,
E.2d 138 (1968)); see also Nordea Bank Finland, PLC, v
Molten, 923 N.Y.S.2d 464, 84 A.D, 3d 589 (1st Dept.
2011). A document or instrument does not qualify under
C.P.L.R. § 3213 "if outside proof is needed, other
than simple proof of nonpayment or a similar de minimis
deviation from the face of the document." Weissman, 88
N.Y.2d at 444.
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure. The rule states in pertinent part:
A party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a). The moving parly bears the initial
burden of demonstrating the absence of any genuine dispute or
issue of material fact by pointing to evidence in the record,
"including depositions, documents . .. [and] affidavits
or declarations, " Fed.R.Civ.P. 56(c)(1)(A), "which
it believes demonstrate[s] the absence of a genuine issue of
material fact." Celolex Corp. v. Catrett 411
U.S. 317, 323 (1986). Once the moving party has fulfilled its
preliminary burden, the onus shifts to the nonmoving party to
raise the existence of a genuine dispute of material fact.
Fed.R.Civ.P. 56(c)(1)(A); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). Courts must
"constru[e] the evidence in the light most favorable to
the non-moving party and dvaw all reasonable inferences in
its favor." Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 (2d Civ. 2010)
(quoting Atlianz Ins. Co. v. Lertier, 416 F.3d 109,
113 (2d Cir. 2005)). In reviewing the record, "the
judge's function is not himself to weigh the evidence and
determine the truth of the matter." Anderson, 477 U.S.
at 249. Rather, "the inquiry performed is the threshold
inquiry of determining whether there is the need for a
trial." Id. at 250.
New York law, a written negotiable instrument is created
where: (1) the instrument is signed by the maker; (2) it
contains an unconditional promise or order to pay a sum
certain; (3) it is payable on demand or at a definite lime;
and (4) it is payable to order or to bearer. N.Y.U.C.C.
§ 3-104(1) (a)-(d). "The computation [of payment]
must be one which can be made from the instrument itself
without reference to any outside source." U.C.C. §
3-106, Comment 1. The use of parol evidence is impermissible
to contradict the unambiguous terms of the instrument.
Shron v. Troulman Sanders LLP, 20 N.Y.3d 430, 436,
963 N.Y.S.2d 613, 986 N.E.2d 430 (2013); Hogan & Co.
v. Saturn Mgmt., Inc., 433 N.Y.S.2d 168, 78 A.D.2d 837
(1st Dept. 1980).
promissory note is a type of instrument containing an
unequivocal and unconditional obligation to repay the lender,
executed by the Defendant. Lugli v. Johnston, 912
N.Y.S.2d 108, 78 A.D.3d 1133, 1135 (2d Dept. 2010); see
also Gullery v. Imburgio, 905 N.Y.S.2d 221, 74 A.D.3d
1022 (2d Dept. 1996). "'To establish prima facie
entitlement to judgment as a matter of law on the issue of
liability with respect to a promissory note, a plaintiff must
show the existence of a promissory note executed by the
defendant and the failure of the defendant to pay in
accordance with the note's terms'" Hansraj
v. Stfkhu, 43 N.Y, S.3d 127, 145 A.D.3d 755, 755-56 (2d
Dept. 2016) (citing Nunez v. Channel Grocery & Deli
Corp., 998 N.Y.S.2d 663, 124 A.D.3d 734, 734-735 (2d
Dept. 2015)). Once plaintiff submits evidence establishing
these elements, the burden then shifts to the defendant to
submit evidence establishing the existence of a triable issue
with respect to a bona fide defense. See Jin Sheng He v.
SingHuei Chang, 921 N.Y.S.2d 128, 83 A.D.3d 788, 789 (2d
Dept. 2011), DISCUSSION
assert they are entitled to summary judgment as a matter of
law. Plaintiffs aver they are the holders in due course of
two $100, 000.00 CDs which are payable upon presentment.
(Memorandum of Law in Support of Plaintiff s Motion for
Summary Judgment in Lieu of Complaint ¶ 1 ("PI.
Mot. Summ. J.”), ECF Doc. No. 1.) The CD ending in
number 0929 is held jointly by Plaintiffs (Aff. of Steven W,
Dammcrs in Supp. of Mot. for Summ. J. in Lieu of Compl.
¶ 9 ("Aff. of S. Dammers"), ECF Doc. No. 1)
and the CD ending in number 0921 is held solely by S.
Dammers. (Id. ¶ 10.) Plaintiffs opened the CD
accounts with First Union National Bank ("First
Union") on December 6, 1999. (Id. ¶ 11.)
Wells Fargo is First Union's successor. (Def. Mem. of Law
in Opp. to Pi. Mot. for Summ. J. 2 ("Def. Opp."),
ECF Doc. No. 12; PI. Mot. Summ. J. ¶ 1.) Plaintiffs aver
that soon after opening the accounts, they placed the CDs in
a safe deposit box where they remained until December 11,
2015. (PI. Mot. Summ. J.. ¶¶ 1-2.) On December 11,
2015, Plaintiffs presented the CDs to Defendant for payment
in full, inclusive of interest. (Id. ¶ 2, )
Despite presentment to the Bank, Defendant refused to redeem
them. Lastly, Plaintiffs aver the accounts were never closed
nor did they previously attempt to redeem the CDs.
(Id. ¶ 7; Aff. of S. Dammers ¶ 23.)
further support of their motion, Plaintiffs submits two
documents showing the CDs which issued by First Union. The
documents contain, in relevant part, an acknowledgment of a
deposited amount ($100, 000.00 each), an opening date for each
(December 6, 1999), an account number, the depositor's
names (Both S: and J. Dammers), the signature of a First
Union representative, an interest rate per annum, an interest
payment frequency period (monthly), a maturity rate (January
6, 2001) and an indication that each certificate was subject
to automatic renewal. Conspicuously missing from the
documents is any language even remotely evincing an
unconditional obligation to pay. Thus, Plaintiff has failed
to make a prima facie showing of entitlement to the relief
no further discussion is required, the Court notes that had
Plaintiffs met their burden, Defendant's submission in
opposition to the Motion for Summary Judgment would have
raised a material issue of fact. Defendant asserts that the
CDs do not, as suggested by Plaintiffs, bear instruments
payable upon presentment, but are merely receipts for Time
Deposit accounts. (Def. Opp., at 1.) In support for their
contention, Defendant relies on the clear and unequivocal
language contained on the face of the CD which refers to the
document as a "Receipt."
also submits the declaration of Benita Sheffield
("Sheffield"), a litigation support specialist for
Wells Fargo, who was formerly employed by First Union as a
Client Operations Manager and who continued her employment
with Wells Fargo thereafter. (See id, ) Sheffield avers she
is familial- with the policies and procedures for
opening First Union Time Deposit accounts and the record
keeping system for managing such accounts. (Def. Opp., Ex. 2.
(Decl. of Benita Sheffield ¶ 3 ("Sheffield
Deck")).) She further avers that a holder of a Time
Deposit account is paid the amount due on the initial or any
subsequent maturity date upon signing a receipt form (for
accounts with no certificate issued) at any branch office.
(Id. ¶ 7.) After reviewing the CDs presented by
Plaintiffs, Sheffield avers that the documents, which were
generated in the Chappaqua, NY branch, are "customer
receipts." (Id. ¶ 8.)
further support, Defendant submits the declaration of
Katheiine Salazar ("Salazar"), an assistant Vice
President for Wells Fargo. (Def. Opp., Ex. 1. (Decl. of
Katheiine Salazar ¶ 1 ("Salazar Decl."))-)
Salazar avers that she is familiar with the records and
record keeping methods and polices of First Union and Wells
Fargo. (Id. ¶¶ 2, 4.) As a general rule,
Wells Fargo retains copies of account records for seven years
from the date those records are generated. (Id.
¶ 5.) Salazar avers that two years after an account is
closed, electronic records of transactions may be purged from
the bank's system, but the purging may take up to three
years. (Id. ¶ 6.) She further avers the bank
has policies and procedures in place to ...