By this motion, defendant Washington Mutual Bank, successor by merger to defendant Dime Savings Bank of New York, FSB (defendant "Bank"), moves for summary judgment pursuant to CPLR 3212. Plaintiff cross-moves for summary judgment against defendant Bank, defendant Lewis Home Care Agency, and defendant Hortense Lewis.

Background

In 1988, plaintiff Teresa Nealon opened a bank account bearing account number XXX57 ("the bank account" or "account XXX57") at what was then Lincoln Savings Bank ("Lincoln Savings") located at 80th Street and York Avenue. Through a series of mergers, Lincoln Savings became Anchor Savings, which merged with Dime Savings, and, most recently, merged with Washington Mutual. Throughout all of the Bank's mergers, Ms. Nealon's bank account remained intact, and, as of May 3, 2001, held an account balance of $ 366,591.70.

In 1999, following an injury, Ms. Nealon began receiving full time home care from defendant Lewis Home Care Agency (defendant "Home Care Agency"). Defendant Hortense Lewis (defendant "Lewis"), is the co-owner of the defendant Home Care Agency.

On February 16, 2001, defendant Lewis sent a handwritten letter to Ms. Curry, Ms. Nealon's niece, in Ireland. The letter indicated that Ms. Nealon wanted Ms. Curry to be added to some [*2](presumably financial) accounts (Cross Motion, Exhibit A).^[FN1] On April 21, 2001, a second handwritten letter was sent by an employee of the Home Care Agency to Ms. Curry. The April letter contained instructions for the distribution of Ms. Nealon's estate,^[FN2] a large portion of which, according to the letter, was to be given to Ms. Curry.

On May 3, 2001, defendant Lewis obtained a power of attorney which she presented to the York Avenue branch of the defendant Bank (Cross-Motion, Exhibit R, Deposition of Karen Morgan Tr. p. 17; Exhibit Q, Deposition of Sarah Carter Tr. p. 16, 17). That same day, defendant Lewis sent a handwritten letter to Ms. Curry in Ireland. This letter claimed that Teresa's money was "running low"^[FN3] and requested the transfer of 72,859.30 pounds (in excess of $100,000 U.S. dollars) from Ms. Nealon's bank accounts in Ireland to the Dime account in New York (Cross Motion, Exhibit C). The letter, which was signed by Ms. Lewis followed by the phrase "Power of Attorney", further suggested that Ms. Curry "buy a money order and send it directly to her home" (Id.). An additional document sent to Ms. Curry in Ireland, also dated May 3, 2001, purported to change the allocation of Ms. Nealon's estate so as to give Ms. Nealon's remaining assets to the Home Care Agency (Id.).^[FN4]

On June 2, 2001, Ms. Curry traveled from Ireland to visit her aunt, and to meet with defendant Bank at the York Avenue branch so as to inquire as to the amount of available funds in Ms. Nealon's account, which Ms. Lewis had told her contained $1,900. Upon arriving at the bank, Ms. Curry was informed that she needed a letter from Ms. Nealon authorizing her to obtain bank account information. Ms. Curry obtained a letter from her aunt which authorized her to access the information, presented it to the bank, and obtained statements of Ms. Nealon's accounts, at [*3]which time she learned that one of her aunt's accounts held $1900. The other account, which had been referenced by Ms. Lewis in the May 3, 2001 letter requesting the transfer of funds because of a claimed "lack of funds", held $357,225.77 (Cross-Motion Exhibit E, Exhibit Y, Deposition of Teresa Curry, p. 19).

Ms. Curry was added as a signatory and as a joint tenant to Ms. Nealon's bank account on June 2, 2001 by Bank Manager Sarah Carter ("Carter"). At deposition, Ms. Curry testified that after learning of her aunt's bank account balances, she discussed the reported discrepancy (Ms. Lewis' claim that Ms. Nealon's bank funds were low) with Ms. Carter (Id. Tr. p. 19, 20). It was Ms. Curry's understanding from this conversation, that the Bank would have to consult with Ms. Curry before allowing Ms. Lewis to remove funds from Ms. Nealon's bank accounts (Id.). Ms. Carter initially testified that she never met Ms. Curry in person (Cross-Motion, Exhibit Q, Deposition of Sarah Carter, Tr. p. 17, 19), but later testified that both Ms. Curry and Ms. Nealon had to have been present at the bank for her to amend Ms. Nealon's bank account (Id. Tr. p. 22). The court notes that Ms. Lewis did not, at any time, accompany Ms. Curry to the Bank (Cross-Motion Ex. N Deposition of Hortense Lewis, Tr. pgs 446-443).

On June 21, 2001, it appears that Ms. Lewis appeared at the Bank with Ms. Nealon and executed a new power of attorney before Ms. Carter (Cross-Motion, Exhibit Q, Deposition of Sarah Carter, Tr. p. 26, 27). Ms. Carter then assisted Ms. Nealon in withdrawing nearly $350,000 from Bank account XXX57 and depositing it into a newly created checking account bearing Ms. Nealon's name (Account XXX41 or "XXX41"), with Ms. Lewis as power of attorney (Id. p. 27-31). Oddly enough, Ms. Carter testified at her deposition that she was not aware that Ms. Nealon's neice had been put on her old account less than three weeks earlier, despite the fact that Ms. Carter herself effectuated the earlier account amendments (Id. P. 31-33). When Ms. Curry returned to New York at the end of June, 2001, she discovered the transfer of funds and the creation of the new account and new power of attorney, and, after being refused further information, sought legal counsel.

It is at this point that the facts of this case become extremely contentious.

On July 6, 2001, Ms. Nealon executed a power of attorney appointing Bertram Brown, Esq. and Ms. Curry as her attorneys-in-fact. On July 9, 2001, Mr. Brown went to the Bank and presented the newly executed power of attorney (in Ms. Curry's favor) to Bank manager Matthew Liggins.^[FN5] According to Mr. Brown's [*4]testimony, Mr. Liggins told him that the Bank required a Revocation of the existing Power of Attorney (Cross-Motion Exhibit O, Tr. p 17-19). When Mr. Brown returned two days later with the Revocation of the existing Power of Attorney ("the revocation"), Mr. Liggins was not available, so Mr. Brown met with Ms. Carter.^[FN6] Mr. Brown further testified that Ms. Carter indicated that the accounts would be kept intact while the Revocation was processed (Id. at 20).

According to the Bank's testimony, Mr. Liggins forwarded the revocation, the July 6th power of attorney and the June 21st power of attorney to Karen Morgan ("Morgan") of the Bank's legal department. Ms. Morgan, concerned that the signatures did not match after consulting with her paralegal (Cross-Motion, Exhibit R, Deposition of Karen Morgan Tr. p. 34, 35), informed Mr. Brown that the Bank would not honor the July 6th power of attorney. Ms. Morgan further claimed that she telephoned Ms. Nealon, who told her that she wanted Ms. Lewis to be her attorney in fact.^[FN7] Ms. Morgan then told Mr. Brown that if they had a doctor witness Ms. Nealon executing a power of attorney and revocation and submit a physician's certification that Ms. Nealon was of sound mind and understood the nature of the transaction, then the Bank would honor the documents (Memorandum in Support of Defendant's motion p. 3-4; Cross-Motion Exhibits Q and R). This new requirement was expressed on July 13, 2001. (Cross-Motion Exhibit O, Tr. p Id.; Exhibit R, Tr. p. 41-42). On July 17, Ms. Curry, who had returned to Ireland only 7 days earlier, returned to New York so that she could be present when her Aunt was examined for competency. On July 23, 2001, Ms. Nealon was determined competent by a physician, and the requisite documents attesting to her mental capacity were tendered to the Bank (Cross Motion Exhibits H, I, and J). These documents were faxed to the Bank on July 23, 2001.

On July 16, 2001, defendant Lewis withdrew $4,075.62 from Ms. Nealon's IRA account. On July 23, 2001, defendant Lewis presented two checks, which she alone signed, made out to "Cash" [*5]to the Bank. One check was presented in the amount of $29,000.00. The other for $200,000.00. On July 23, 2001, defendant Lewis established, at the Bank, an account in her name alone. The funds deposited into that account were the result of the deposit of two checks: one in the amount of $200,000 and one in the amount of $29,000 (Cross Motion, Exhibit U). Despite the fact that both Ms. Carter ^[FN8] and Mr. Liggins ^[FN9] testified at their [*6]respective depositions that certain procedures are undertaken when checks are presented to the bank for large amounts of money, payable to cash, neither Bank Manager appears to have seen either of these checks, both of which were cashed by the Bank and subsequently deposited into a new account, at the Bank, solely in Ms. Lewis' name (Cross Motion, Exhibit P, Exhibit R).

The instant action was commenced in March, 2002. The complaint, comprised of two causes of action, alleges negligence against the Bank in allowing defendant Lewis to withdraw the aforementioned funds, and asserts a claim for conversion against defendants Lewis and Lewis Home Care Agency. The instant motions followed.

Discussion

As a preliminary matter, it is noted that defendants Lewis and the Lewis Home Care agency did not submit opposition to plaintiffs' cross-motion. It is clear to this court however, that even if these defendants had submitted opposition, the overwhelming evidence that has been presented eliminates any material issues of fact with respect to the asserted claims of conversion alleged against them (see, Wolff v. New York City Transit Authority, 21 AD3d 956 [2nd Dept 2005]; Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]. See generally, Barr, Altman, Lipshie, and Gerstman; New York Civil Practice Before Trial, [James Publishing 2006] § 37:91-92). As such, the portion plaintiffs' cross motion seeking summary judgment against defendant Lewis and defendant Lewis Home Care agency is granted.

The balance of plaintiffs' cross-motion is additionally granted. Even if this court accepts the contention that the Bank possessed a facially valid power of attorney that appointed defendant Lewis as Attorney in Fact, giving her unfettered access to Ms. Nealon's account (see, Heine v. Newman, Tannenbaum, Helpern, Syracuse, and Hirschtritt, 856 F. Supp 190 [S.D.N.Y 1994] ("Under New York Law, "[p]ursuant to a power of attorney, the attorney-in-fact is empowered to take any and all acts as fully as the principle might or could do.'" (internal citations omitted) Id. at 194)), the Bank, based on the facts of this case, should have been on notice that there was a high risk that Ms. Nealon's funds might be misappropriated by one or more parties.[*7]In this case, between June 2, 2001 and July 23, 2001, there were multiple applications for amendments to Ms. Nealon's Bank accounts. Two powers of attorney were executed within roughly two weeks of each other, one of which was being questioned by the Bank because the Bank questioned Ms. Nealon's competency. Despite the Bank's concerns, and during the exact time frame when the Bank was requiring proof of Ms. Nealon's competency, the Bank saw fit to honor two of Ms. Nealon's checks, both of which were made out to cash, signed by an attorney-in-fact for nearly one quarter of a million dollars. In a story twist worthy of television drama, on the same day the Bank honored these checks, the identical amounts, deposited as checks, conspicuously wind up in a newly minted Bank account made out solely in Ms. Lewis' name.

As the Appellate Division, First Department noted in Zaz-Huff Incorporated v. Chase Manhattan Bank, N.A., 277 AD2d 59, 61 [1st Dept 2000]:

"A bank is not in the normal course required to conduct an investigation to protect funds from possible misappropriation by a fiduciary, unless there are facts ... indicating misappropriation", in which case the bank "may be liable for participation in the diversion, either by itself acquiring a benefit, or by notice or knowledge that a diversion is intended or being executed"

(Id. at 61; citing Matter of Knox, 64 NY2d 434, 438 [1985]). Under the circumstances of the instant case, it is clear to this court that the chain of events surrounding the transactions involving Ms. Nealon's financial accounts were not "ordinary". Moreover, despite arguments to the contrary, it is obvious, as evidenced by the Bank's actions, that the Bank suspected that something was awry with Ms. Nealon's accounts. Under these circumstances, the Bank cannot simply stand aside and claim that it played no role in the eventual defalcation of Ms. Nealon's funds.

Inasmuch as there are no triable issues of fact raised within the defendant Bank's motion papers which would relieve them from liability, it is

ORDERED that Plaintiffs' motion is granted in its entirety.

Settle Order and Judgement.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C.