Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Howard Gerber, J.), entered June 26, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

Judgment reversed without costs and action dismissed.

Plaintiff commenced this small claims action to recover $3,000 which defendant bank debited from an account she maintained with it. Defendant contended that a check in the sum of $3,800 made payable to plaintiff was deposited by her in another account which she maintained with defendant. Plaintiff withdrew $3,450 against said check after she was told by a bank employee that the $3,800 check had cleared. Thereafter, the $3,800 check was dishonored as a counterfeit. The court below found that defendant should not have provisionally given plaintiff permission to withdraw the funds against the check and awarded plaintiff the principal sum of $3,000, the monetary jurisdictional limit of the court.

Contrary to the findings of the court below, since settlement of the item had not become final, settlement of the check herein was provisional, the risk of loss remained with plaintiff and, thus, defendant had the right to, inter alia, charge back its customer's account or obtain a refund from plaintiff (see UCC 4-212 [1]; see generally UCC 4-212 [5]).

Accordingly, as it cannot be said that substantial justice was done between the parties (UJCA 1807; see Williams v Roper, 269 AD2d 125 [2000]), the judgment is reversed and the action dismissed.

Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: January 07, 2009