Rojas v Morales (2013 NY Slip Op 50841(U))

Rojas v Morales

2013 NY Slip Op 50841(U) [39 Misc 3d 145(A)]

Decided on May 13, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Julio Cesar Rojas and MIGUELINA ROJAS, Appellants, —

against

David Morales and JANAY DENNIS, Defendants, -and- J.P. MORGAN CHASE BANK, N.A., Respondent.

Appeal from an order of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), entered May 25, 2011. The order, insofar as appealed from as limited by the brief, granted so much of a motion as was by defendant J.P. Morgan Chase Bank, N.A. seeking to dismiss the action insofar as asserted against it.

Plaintiffs brought this small claims action to recover penalty fees assessed by defendant J.P. Morgan Chase Bank, N.A. (Chase) when plaintiffs withdrew the funds in their two Chase certificates of deposit (CDs). Defendants moved to dismiss the action, asserting, among other [*2]things, that plaintiffs had withdrawn all the funds from both CDs, prior to their maturity, after having been advised that the early withdrawals would result in the imposition of penalties pursuant to Chase's account rules and regulations, which authorize the imposition of a penalty for the early withdrawal of a CD, of one-year duration or longer, of $25 plus 3% of the amount withdrawn. Plaintiffs opposed the motion to dismiss, asserting, among other things, that the provision for early withdrawal penalties contains a "condition precedent" which did not occur, and that, as a result, Chase was not authorized to impose the early withdrawal penalty. The City Court granted defendants' motion to dismiss. As limited by their brief, plaintiffs appeal from so much of the order as granted so much of the motion as was by Chase seeking to dismiss the action insofar as asserted against it.

Upon a review of the record, we find that the documentary evidence presented by defendants refutes plaintiffs' factual allegations and conclusively establishes a defense as a matter of law (see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Pallotta v City of New York, 94 AD3d 838 [2012]).

We have reviewed plaintiffs' remaining contentions and find that they are either without merit, raised for the first time on appeal, or have been rendered academic.