653 N.Y.S.2d 546 | N.Y. App. Div. | 1997
Order, Supreme Court, New York County (Elliott Wilk, J.), entered November 29, 1995, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Plaintiff, who maintained a business checking account with defendant bank, alleges negligence, breach of contract and breach of fiduciary duty arising out of defendant’s refusal to credit his account for unauthorized withdrawals made by his secretary, claiming that defendant was legally obligated to specify on his account statements which debits were attributable to ATM withdrawals. We agree with the IAS Court that no such duty exists, at least absent a showing of, for example, a statute, regulation, internal bank policy or written agreement imposing such a duty. A bank should not be held responsible for losses caused by a customer’s failure to safeguard his or her ATM card and identification code and to timely examine statements. No issue of fact exists as to the adequacy of the instant statements to put plaintiff on notice of the theft, if prudently examined (see, Screenland Mag. v National City Bank, 181 Misc 454). Concur—Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.
