Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered December 21, 2006. The order denied defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

Plaintiff commenced this action to recover the principal sum of $6,200. He alleged that this sum was charged back to his account by defendant bank after a cashier's check in the sum of $19,000, made payable to plaintiff and deposited by him into his account at defendant bank, was returned unpaid and found to be counterfeit. Defendant moved for summary judgment dismissing the complaint. In support of the motion, defendant alleged that after plaintiff deposited the cashier's check on July 15, 2005, it credited plaintiff's account in the amount stated on the check. After defendant presented the check to the collecting bank for payment, said check was returned unpaid by the payor bank on July 20, 2005. Defendant alleged further that it contacted plaintiff by telephone on July 20, 2005 and notified him that the check was returned unpaid. In addition, defendant sent plaintiff a written notice on July 21, 2005 that the check was returned unpaid. Consequently, plaintiff's account was charged back accordingly. Plaintiff alleged that he was told by a bank teller that the check cleared and that the funds were in the account. The court below denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff raised issues of fact as to whether the bank had acted negligently.

Until the time that final settlement of the check was made, the risk of non-collection remained with plaintiff and any settlement made thereon by defendant was provisional only (see UCC 4-212 [1]; Hanna v First Natl. Bank of Rochester, 87 NY2d 107, 119 [1995]; Call v [*2]Ellenville Natl. Bank, 5 AD3d 521, 523 [2004]). Accordingly, when final settlement was not made on said check due to the discovery that it was counterfeit, defendant was entitled to revoke the provisional settlement made thereon and charge back plaintiff's account for the funds drawn on the check (UCC 4-212 [1]; Hanna v First Natl. Bank of Rochester, 87 NY2d 107 [1995], supra; Allen v Carver Fed. Sav. & Loan Assn., 123 Misc 2d 704 [App Term, 1st Dept 1984]). Furthermore, we find that the alleged representation by an unnamed teller at defendant bank indicating that the check had cleared and that the funds were in the account was not a final settlement of the check and is insufficient to raise a triable issue of fact establishing that defendant bank acted negligently in handling the check (see Call v Ellenville Natl. Bank, 5 AD3d at 523; Allen v Carver Fed. Sav. & Loan Assn., 123 Misc 2d 704 [1984], supra). Additionally, plaintiff could not rely upon the fact that he was permitted to withdraw funds from the account in reliance upon the teller's statement as a basis for imposing liability upon defendant (id.). Accordingly the order denying defendant's motion for summary judgment dismissing the complaint is reversed and the motion granted.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008