This matter comes before the Court on the motions of: (1) Defendant and Third-Party Plaintiff, Pamrapo Savings Bank, S.L.A. (“Pamrapo”), for summary judgment dismissing Counts Six (conversion under the Uniform Commercial Code (“U.C.C.”)), Seven (breach of U.C.C. transfer warranties) and Eight (common law negligence) asserted by Bank Polska Opieki, S.A. (“Bank Polska”) in its Amended Complaint; (2) Fourth-Party Plaintiff, The Chase Manhattan Bank, N.A. (“Chase Manhattan”), for summary judgment granting indemnification and attorneys’ fees under U.C.C. § 4-207 (U.C.C. warranty); (3) Third- and Fourth-Party Defendant, Donald Meliado (“Meliado”), for summary judgment dismissing the claims for indemnification and contribution asserted against him by Pamra-po and Chase Manhattan. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons set forth below: (1) Pamra-po’s motion for summary judgment is granted; (2) Chase Manhattan’s motion for summary judgment is granted in part and denied in part; and (3) Meliado’s motion for summary judgment is denied.
I. BACKGROUND
These motions raise intricate issues regarding the U.C.C. loss allocation scheme and how it should be applied when a forged instrument enters banking channels.
The underlying dispute involves a $2,000,-000.00 check, drawn by Bank Polska on its account with the drawee bank, Manufacturer’s Hanover Trust (“MHT”) 1 , now Chemical Bank (“Chemical”), that was allegedly forged by Andrzej Smolinski (“Smolinski”). (Amended Compl. at ¶ 10).
Bank Polska allegedly entered into a loan agreement with Smolinski-Elektronik, a Polish corporation owned by Smolinski. (Plaintiffs Brief in Opposition to Defendant Pam-rapo Savings Bank, S.L.A.’s Motion for Summary Judgment at 3-4). Pursuant to the loan agreement and allegedly without adequately investigating Smolinski’s financial background, Bank Polska provided Smolinski with the $2,000,000.00 check, which was made payable to “Braxton Industries, New York USA.”
Smolinski then came to the United States and engaged Meliado, a New Jersey attorney, to assist him in incorporating Braxton Industries, Inc., (Meliado Cert, at ¶ 3), which Meliado formed. (I'd). Several days later, Smolinski returned to Meliado’s office with the $2,000,000.00 check to seek assistance in opening up a corporate account. (Id. at ¶ 7). Meliado suggested Pamrapo and accompanied Smolinski to Pamrapo to open the account. (Id at ¶ 10). While at the bank, Pamrapo alleges that Meliado made certain representations concerning Smolinski’s financial means and his authority to indorse the $2,000,000.00 check. (See Memorandum on Behalf of Pamrapo Savings Bank, S.L.A. in Opposition to Donald J. Meliado’s Motion for Summary Judgment at 1-2). Meliado denies having made any representations to Pamra-po.
Smolinski allegedly forged an endorsement to the check, deposited the $2,000,000.00 in the Pamrapo corporate account Meliado and he established, and eventually withdrew substantial sums of the money. The United States Attorney’s Office subsequently brought criminal charges against Smolinski for his actions in connection with the $2,000,-000.00 check.
Pamrapo, the depositary bank, allegedly accepted the forged cheek for deposit and placed it in the collection process. (Amended Compl. at ¶¶ 17-20). Pamrapo forwarded the check to Federal Home Loan Bank of New York (“New York Bank”). (Chase Manhattan’s Rule 12G Statement at ¶ 1). New York Bank then transferred the check to Chase Manhattan, which forwarded it to Chemical. Chemical eventually debited Bank Polska’s account $2,000,000.00. (Id. at ¶¶ 2-3).
*951 Chemical earlier moved this Court to dismiss the claims Bank Polska asserted against Chemical. By Opinion and Order dated January 24, 1995, this Court dismissed Counts One, Two and Three of Bank Polska’s Amended Complaint, which asserted claims of negligence and conversion against Chemical. (See Opinion and Order dated January 24, 1995, at 18 (“1-24-95 Op. at —”)). Specifically, this Court held that under New York law and the facts of this case: (1) a drawer, like Bank Polska, has no negligence claim against its drawee bank; and (2) a drawer, like Bank Polska, cannot assert a conversion claim because it lacks a property interеst in the allegedly converted check.
Pursuant to an Indemnification/Settlement Agreement entered in November, 1994, Pam-rapo agreed to indemnify New York Bank.
II. DISCUSSION
A. The Summary Judgment Standard
Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.CivJP. 56(c). Whether a fact is material is determined by the applicable substantive law.
Anderson v. Liberty Lobby, Inc.,
The moving party has the initial burden of showing that no genuine issue of material fact exists.
Celotex Corp. v. Catrett,
In determining whether any genuine issues of material fact exist, the Court must resolve “all inferences, doubts, and issues of credibility ... .against the moving party.”
Meyer v. Riegel Products Corp.,
Since a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party whо opposes such a motion.
Celotex, 477
U.S. 317, 322-23,
In deciding a summary judgment motion, however, the Court’s role is not “to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.”
Anderson, 477
U.S. at 248,
When a ease turns on credibility determinations, summary judgment is inappropriate.
Coolspring Stone Supply, Inc. v. American States Life Ins. Co.,
B. Pamrapo’s Motion for Summary Judgment Against Bank Polska
Pamrapo moves for summary judgment dismissing Counts Six, Seven and Eight of Bank Polska’s Amended Complaint, which allege, respectively, conversion under the U.C.C., breach of warranty under the U.C.C., and common law negligence. For the reasons set forth below, Pamrapo’s motion is granted and Counts Six, Seven and Eight of Bank Polska’s Amended Complaint, insofar as they pertain to Pamrapo, are dismissed with prejudice.
1. Choice of Law
A federal court sitting in diversity applies the choice of law rules of the forum state.
Van Dusen v. Barrack,
N.J.S.A. § 12A:4-102(2) 2 provides, in part: The liability of a bank for action or non-action with respect to any item handled by it for purposes of presentment, payment or collection is governed by the law of the place where the bank is located.
Pamrapo is a New Jersey bank with its principal place of business in Bayonne, New Jersey. (Amended Compl. at ¶ 5). Accordingly, New Jersey law governs Bank Polska’s claims against Pamrapo.
2. Bank Polska’s Claim that Pamrapo Converted the Check
In its January 24, 1995 Opinion and Order, this Court held under New York law, but relying in part on the New Jersey case,
Life Insurance Co. of Virginia v. Snyder,
Bank Polska argues that the law of the case doctrine does not apply, because New Jersey, not New York, law applies to Bank Polska’s claims against Pamrapo.
Because the Court concludes that New Jersey law precludes a conversion action by the drawer against the depositary bank in these circumstances, it need not reach whether the law of the case doctrine also bars the claim.
The Court applies the same reasoning it did in its January 24, 1995 Opinion to determine that Bank Polska lacks standing to assert a conversion claim against Pamrapo. See 1-24-95 Op. at 15. Although the term owner is not defined in Section 1-201, official comment 2 to Section 3^419 states that “[a] negotiable instrument is the property of the holder.” Section 1-201(20) defines a holder as a person in possession of an instrument “drawn, issued, or indorsed to him or to his order or to bearer in blank.”
Because the $2,000,000.00 check was not “drawn, issued, or indorsed” to Bank Polska, Bank Polska is not its holder or owner, and therefore lacks a proprietary interest sufficient to confer standing to sue for conversion against the depositary bank.
See Stone & Webster Engineering Corp. v. First National Bank & Trust Co. of Greenfield,
Bank Polska cites
Martin Glennon, Inc. v. First Fidelity Bank, N.A.,
Martin Glennon involved a suit by the payee against the depositary bank, the typical scenario in a conversion action. 1 White & Summers, Uniform Commercial Code § 15-5 at 756 (3d ed. 1988). To the extent that Martin Glennon advances the proposition that a drawer may sue a depositary bank in conversion, it does so in dicta, and therefore is not controlling here.
Bank Polska’s reliance upon
Justus Co. v. Gary Wheaton Bank,
Bank Polska next argues that it is the “true owner” of the check because it is the only party that has not received consideration for it. Pamrapo argues that Bank Polska has received consideration for the check — a promissory note executed by Smo-linski and collateral for the loan it issued Smolinski. (See Reply Memorandum of Law of Pamrapo Savings Bank, S.L.A. in Furthеr Support of its Motion for Summary Judgment Against Bank Polska Opieki, S.A. at 5).
Regardless of whether Bank Polska did or did not receive consideration for the check, the cases Bank Polska cites do not support the proposition that under New Jersey law, a drawer who has not received valuable consideration for a check may maintain a conversion claim against a depositary bank.
Tubin v. Rabin,
Casarez v. Garcia,
Finally,
National Credit Union Admin. v. Mich. Nat. Bank,
Policy reasons also militate against recognizing a conversion cause of action under these circumstances. Allowing a drawer to sue the depositary bank for conversion, par
*954
ticularly when, as here, the drawer is accused of negligence, would violate the intention of the drafters of the U.C.C. to require the drawer to seek recourse from his own draw-ee bank.
Stone & Webster,
Furthermore, recent amendments to New Jersey’s Uniform Commercial Code clarify that a drawer such as Bank Polska has no standing to sue under Section 3-419. On February 15, 1995, the New Jersey legislature amended the Uniform Commercial Code. Though the Court does not apply the amendments retroactively,
Jordan v. Dennison,
Section (a) of amended Section 3-420, which replaces Section 3-419 as the code provision governing conversion claims, provides that “[a]n action for conversion of an instrument may not be brought by ... the issuer or acceptor of the instrument.” The Official Comment to amended Section 3-420, further, expressly adopts the holding in Stone & Webster. See Official Comment 1 to Section 3^20 (“There is no reason why a drawer should have an action in conversion. The check represents an obligation of the drawer rather than property of the drawer. The drawer has an adequate remedy against the payor bank for recredit of the drawer’s account for unauthorized payment of the check.”).
Bank Polska urges this Court, sitting in diversity, to do what the New Jersey legislature refused to do — crеate a conversion cause of action for the drawer against the depositary bank. This the Court must decline.
Bank Polska further argues that fact issues regarding ownership preclude summary judgment on the conversion claim.
See Justus,
Bank Polska also claims that fact issues regarding whether Pamrapo acted in accordance with reasonable commercial standards precludes summary judgment.
See Phariss v. Eddy,
Bank Polska next argues that it is entitled to maintain a conversion claim against Pamrapo because Braxton Industries, Inc., the intended payee, assigned any and all claims it has relating to the check to Bank Polska. Braxton Industries, Inc.’s *955 President, Charles Yoas, however, has testified that his company has no interest in the check and no claims against any party. (Certification of Charles Yoas, dated March 22, 1995, at 18). Because there was nothing to assign, the purported assignment fails to confer a right to sue.
Lincoln Nat Bank & Trust Co. v. Bank of Commerce,
The Fifth Circuit held that the insurance company as subrogee could not maintain a conversion claim against the depositary bank when the intended payee never came into actual or constructive possession of the check. Id. at 398. The rule announced by the Fifth Circuit in Lincoln “prevents] attempts by negligent drawers, such as the insurance compan[y] here, to sidestep the issue of their negligence by subrogating to the rights of innocent payees or by persuading the payees to seek recovery directly from the banks who handled the cheeks.” Id.; see also 1 White & Summers, Uniform Commercial Code § 15-5 at 756 (“By dressing in the clothing of the payee, the insurance company [in Lincoln ] presumably hoped to escape the 3-405 defense that it, like the payor bank, would face suing upstream on a warranty.”) (citing the holding in Lincoln as properly denying the drawer a cause of action in conversion).
Like the insurance company in Lincoln, Bank Polska may not pose as the payee so it can assert a conversion claim against Pamra-po. The Court, accordingly, grants summary judgment dismissing Count Six of Bank Polska’s Amended Complaint insofar as it pertains to Pamrapo.
3. Bаnk Polska’s Claim that Pamrapo Breached its Presentment Warranty
Bank Polska’s claim, asserted in Count Seven of its Amended Complaint, that Pamrapo breached the Section 3-417(1) presentment warranty fails, because the Section 3-417(1) warranty does not run to a drawer like Bank Polska.
Under New Jersey law, the Code warranties contained in Sections 3—417 and 4-207 do not run to the drawer. Section 3-417(1), upon which Bank Polska relies, provides:
Any person who obtains payment or acceptance and any prior transferor warrants to a person who in good faith pays or accepts that ... (a) he has good title to the instrument or is authorized to obtain payment or acceptance on behalf of one who has a ■ good title.
Section 4-207(1) contains a similar warranty:
Each customer or collecting bank who obtains payment or acceptance of an item and each prior customer and collecting bank warrants to the payor bank or other payor who in good faith pays or accepts the item that ... (a) he has a good title to the item or is authorized to obtain payment or acceptance on behalf of one who has a good title.
Regardless of the warranty provision upon which Bank Polska relies, it may not assert a warranty claim against Pamrapo.
See Life Ins. Co. of Virginia v. Snyder,
Bank Polska cites to
Sun ’n Sand, Inc. v. United California Bank,
The Sun ’n Sand line of cases has been rejected by the New Jersey legislature in its recent amendments to New Jersey’s Uniform Commercial Code. See Official Comment 2 to Section 3-417 (“In Sun ’N Sand [Sun ’n Sand], Inc. v. United California Bank, the court held that under former section 3 — 417(1) a warranty was made to the drawer of a check when the check was presented to the drawee for payment. The result in that case is rejected.”). Though amended Section 3-417(1) does not apply retroactively to this action, the Court finds the official commentary persuasive support for the рroposition that the Section 3-417(1) warranty does not run to drawers. See also 1 White & Summers, Uniform Commercial Code § 15-9 at 776-77 (“[W]e think it unfortunate that some courts have extended the 4-207(1) warranty to the drawer.”).
Bank Polska also urges the Court to draw a distinction between the 3-417(1) warranty, which runs to payors outside of banking channels, and the 4 — 207 warranty, which does not. (Plaintiffs Brief in Opposition to Defendant Pamrapo Savings Bank, S.L.A.’s Motion for Summary Judgment at 39 n. 26). The warranty provisions, however, are “almost identical.” 1 White & Summers, Uniform Commercial Code § 15-9 at 774. Further, the same reasoning that supports the position that a drawer bank is not a beneficiary of the 4-207(1) warranty — i.e., that a drawer is not a payor or transferee — applies with equal force to the 3-417(1) warranty. Finally, the same policy reasons that serve to deny a 4-207(1) warranty claim in favor of the drawer, also counsel in favor of denying a 3-417(1) warranty claim. See 1 White & Summers, Uniform Commercial Code § 15-9 at 776 (“To hold that the warranties in 4-207 flow either directly or under a third-party beneficiary theory to the drawer, is to shift the burden of presenting [negligence] defenses to the depositary or other collecting banks.”).
Accordingly, the Court dismisses Count Seven of Bank Polska’s Amended Complaint insofar as it pertains to Pamrapo.
4. Bank Polska’s Claim that Pamrapo is Liable for Negligence
The Court also dismisses Count Eight of Bank Polska’s Amended Complaint insofar as it pertains to Pamrapo, because allowing an independent common law negligence action would upset the loss allocation scheme contemplated by the legislature in enacting the Uniform Commercial Code.
The Uniform Commercial Code provides a comprehensive frаmework for allocating losses when a forged check enters the negotiation process. Only in very rare instances should a court upset the legislative scheme of loss allocation and permit a common law cause of action.
See Girard Bank v. Mount Holly State Bank,
Pamrapo cannot be liable to Bank Polska in negligence because, as a depositary bank, it had no direct dealings with Bank Polska and therefore owed it no duty.
Western Union Tel. Co. v. Peoples Nat. Bank in Lakewood,
Bank Polska mistakenly relies on
Girard Bank v. Mount Holly State Bank,
The
Girard Bank
court expressly distinguished the situation where a drawer attempts to assert a negligence claim against a depositary bank.
Girard Bank,
Allowing a negligence claim in the circumstances of this case would circumvent the drawee’s Section 3^106 and 4-406 defenses. Further, unlike in Girard Bank, the Code policy favoring deterrence of the party best able to prevent the fraud would not be furthered by allowing an allegedly negligent drawer to circumvent the drawee bank’s contributory negligence defenses.
Bank Polska also cites to
New Jersey Steel Corp. v. Warburton,
Finally, Bank Polska argues that denying it a direct action against Pamrapo could result in Pamrapo never being held hable for its negligence, contrary to the policy of the Code to place liability on negligent banks as opposed to negligent drawers. The Court does not agree with Bank Polska’s interpretation of Code policy.
See Girard Bank,
“The Article 3 and 4 scheme is not comprehensive, but it is nearly so. When one thinks he has found a large hole in the scheme, he is likely to be mistaken.” 1 White & Summers, Uniform Commercial Code § 16-6 at 806. The Court sees whole cloth where Bank Pols-ka sees hole. Far from advancing Code policies, allowing a direct common law action against the depositary bank would thwart them by circumventing the drawee’s Code defenses. Accordingly, the Court dismisses Count Eight of Bank Polska’s Amended Complaint, with prejudice.
C. Third-Party Defendant Meliado’s Motion for Summary Judgment Against Pamrapo
The Court denies Meliado’s motion for summary judgment because genuine issues of material fact exist as to whether Meliado made false representations to Pamrapo.
Pamrapo asserts two claims against Melia-do, one for negligent misrepresentation, and another for fraud. Both claims survive summary judgment.
Under New Jersey law, pecuniary liability for negligent misrepresentation is
*958
properly imposed whenever an attorney “supplies false information for the guidance of others in their business transactions, ... if he fails to exercise reasonable care or competence in obtaining or communicating the information.”
Petrillo v. Bachenberg,
Pamrapo has presented evidence that genuine issues of fact exist as to the statements Meliado made when he accompanied Smolinski to Pamrapo. Meliado denies making any representations to Pamraрo.
(See
Meliado Cert, at ¶ 20). Pamrapo, however, offers the deposition testimony of Pamrapo’s vice president, Walter Delikat, that Meliado represented, among other things, that the $2,000,000.00 check was good and that Smo-linski was the son of a wealthy industrialist. (Delikat Dep. at 41-42). This version of events, if credited by a jury, could support a verdict against Meliado.
See Security National Bank v. Lish,
Pamrapo has also presented sufficient material evidence to withstand summary judgment with respect to its fraud claim against Meliado. To prove fraud under New Jersey law, a party must show that the defendant: (1) materially misrepresented a presently existing or past fact; (2) knowing the representation to be false and intending the other party to rely on it; (3) with the result that the other party actually did rely on it to his detriment.
Lightning Lube v. Witco Corp.,
As set forth above, Pamrapo has presented evidence that a genuine issue of material fact exists as to whether Meliado made false representations regarding Smo-linski’s financial means and the genuineness of the check. Whether Meliado did so with
scienter,
as required for fraud liability, is a question of fact that is particularly ill-suited for summary disposition.
Coolspring Stone Supply, Inc. v. American States Life Ins. Co.,
In support of his motion for summary judgment, Meliado advances the fallacious proposition, based on an analogy to concepts of duty in criminal law, that he owed no duty to Pamrapo, because Pamrapo is not his client. The Supreme Court of New Jersey, however, explicitly rejected this argument.
Petrillo v. Bachenberg,
Pamrapo has met its burden of presenting competent evidence regarding genuine issues of material facts. Further, granting summary judgment at this stage of the proceedings, with the depositions of several key witnesses yet to be taken, would be unfair to Pamrapo. See Fed.R.Civ.P. 56(f). Accordingly, the Court denies Meliado’s motion for summary judgment without prejudice.
For the same reasons, the Court denies without prejudice Meliado’s motion for summary judgment seeking dismissal of Chase’s Fourth-Party claims.
D. Fourth-Party Plaintiff Chase’s Motion for Summary Judgment Against Bank Polska
The Court grants Fourth-Party Plaintiff Chase’ motion for summary judgment insofar as it seeks an Order that New York Bank, and henсe Pamrapo as New York Bank’s indemnitor, must indemnify Chase in the event that Chase is liable to Chemical on Chemical’s warranty claims. The Court, however, denies Chase’s motion insofar as it seeks attorneys’ fees and costs incurred during this action.
As an initial matter, pursuant to New Jersey’s choice of law principles as explicated above, the Court applies New York law to the claims against New York Bank, because New York Bank is a New York bank. {See Fourth-Party Compl. at ¶ 2).
Chase is entitled to indemnification from Pamrapo. The only claim asserted against Chase is Chemical’s claim that Chase breached the Uniform Commercial Code presentment/transfer warranties. N.Y.U.C.C. §§ 4-207 and 3-419. Pamrapo, further, does not dispute that New York *959 Bank, its indemnitee, made the very same wаrranties to Chase. Pamrapo, therefore, is under an obligation to indemnify Chase in the event that Chase is hable to Chemical on Chemical’s breach of warranty claims.
In fact, Pamrapo acknowledges its obligation to indemnify Chase for breach of warranty. (Brief on Behalf of Pamrapo Savings Bank, S.L.A. and Federal Home Loan Bank of New York in Opposition to Chase Manhattan’s Motion for Summary Judgment at 1). The Court therefore grants Chase’s motion for summary judgment to the extent that it seeks indemnification from Pamrapo for Chemical’s breach of warranty claims.
The Court, however, denies Chase’s motion insofar as it seeks to be indemnified for attorneys’ fees and costs incurred in this action. N.Y.U.C.C. § 4-207 provides that damages for breach of warranty may include “expenses related to the item, if any.” Official Comment 5 to Section 4-207 states that “‘expenses’ referred to in [U.C.C. § 4-207(3) ] may be ordinary collecting expenses and, in appropriate cases, could also include such expenses as attorneys fees.”
Neither the highest court in New York, nor the intermediate New York appellate courts, have addressed whether the term, “expenses,” includes attorneys’ fees. In the absence of authoritative pronouncement, the Court must predict how the Court of Appeals would rule.
Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co.,
The Third Circuit faced a similar task construing the identical provision in New Jersey’s Uniform Commercial Code and concluded, based on New Jersey’s “unhappy history with the practice of awarding аttorneys’ fees,” and New Jersey’s strict adherence to the American Rule regarding attorneys’ fees, that Section 4-207(3) did not provide for attorneys’ fees.
McAdam v. Dean Witter Reynolds, Inc.,
New York also follows the American Rule.
Mighty Midgets v. Centennial Ins. Co.,
For the same reasons, the Court does not read the term “expenses” to cover the costs of suit.
Further, even if the Court of Appeals did recognize the recovery of attorneys’ fees and costs under N.Y.U.C.C. § 4-207(3), the Court predicts that it would do so only in appropriate cases. After analyzing the lower court opinions from New York that have authorized the recovery of attorneys’ fees under N.Y.U.C.C. § 4-207(3), the Court concludes that this is not an “appropriate case” to award attorneys’ fees and costs.
The cases cited by Chase in support of its motion for attorneys’ fees involve egregious conduct suggestive of bad faith. In the three eases cited by Chase,
Provident National Bank v. National Bank of North America,
17 U.C.C.R.Serv. 486, 487 (N.Y.Civ.Ct.1975),
Long Island Trust Co. v. National Bank of North America,
28 U.C.C.R.Serv. 1442, 1446 (N.Y.Sup.Ct.1980) and
Lund v. Chemical Bank,
Chase further argues that it is entitled to attorneys’ fees expended in this litigation *960 pursuant to an indemnification clause in the Deposit Account Agreement between New York Bank and Chase. Chase’s Fourth-Party Complaint makes no mention of the Deposit Account Agreement, however. The Fourth-Party Complaint seeks indemnity based upon Pamrapo and New York Bank’s primary breach of the Code warranties, not based on the contract between Chase and New York Bank. (Fourth-Party Complaint at ¶¶ 17-18). Chase’s contract claim, therefore, is not properly before the Court on this motion for summary judgment. Chase may, of course, move the Court to amend its Fourth-Party Complaint to assert a claim based on contract.
Accordingly, Chase’s motion for summary judgment is granted in part and denied in part without prejudice.
III. CONCLUSION
For the foregoing reasons, the Court: (1) grants Pamrapo’s motion for summary judgment and dismisses Counts Six, Seven and Eight of Bank Polska’s Amended Complaint insofar as they pertain to Pamrapo; (2) denies Meliado’s motion for summary judgment, without prejudice; (3) grants Chase’s motion for summary judgment insofar as Pamrapo is Ordered to indemnify Chase for the breach of warranty claims Chemical asserts against Chase and denies without prejudice Chase’s motion for summary judgment insofar as Chase seeks to be indemnified for attorneys’ fees and costs.
An appropriate Order accompanies this Opinion.
ORDER
This matter having come before the Court on the motions of: (1) Defendant and Third-Party Plaintiff, Pamrapo Savings Bank, S.L.A. (“Pamrapo”), for summary judgment dismissing Counts Six (conversion under the Uniform Commercial Code (“U.C.C.”)), Seven (breach of U.C.C. transfer warranties) and Eight (common law negligence) asserted by Bank Polska Opieki, S.A. (“Bank Polska”) in its Amended Complaint; (2) Fourth-Party Plaintiff, The Chase Manhattan Bank, N.A. (“Chase Manhattan”), for summary judgment granting indemnification and attorneys’ fees under U.C.C. § 4-207 (U.C.C. warranty); (3) Third- and Fourth-Party Defendant, Donald Meliado (“Meliado”), for summary judgment dismissing the claims for indemnification and contribution asserted against him by Pamra-po and Chase Manhattan; and
The Court having considered the submissions of counsel as well as oral argument on behalf of the parties; and
For good cause shown;
It is on this 11th day of December, 1995 ORDERED that:
(1) Pamrapo’s motion for summary judgment dismissing Counts Six, Seven and Eight of Bank Polska’s Amended Complaint insofar as they pertain to Pamrapo is granted;
(2) Meliado’s motion for summary judgment is denied without prejudice;
(3) Chase’s motion for summary judgment is granted in part insofar as Pamrapo is Ordered to indemnify Chase for the breach of warranty claims Chemical asserts against Chase and denied in part without prejudice insofar as Chase seeks to be indemnified for attorneys’ fees and costs.