Opinion
570234/03.
Decided June 9, 2004.
Third-party plaintiff Citibank, N.A., appeals from an order of the Civil Court, New York County, entered July 3, 2002 (Eileen N. Nadelson, J.) which granted third-party defendant's motion to dismiss the third-party complaint as time-barred by the Statute of Limitations and from an order of the same court and Judge entered October 29, 2002 (Eileen N. Nadelson, J.) which granted Citibank's motion for reargument and, upon reargument, adhered to the prior decision.
Orders entered July 3, 2002 and October 29, 2002 (Eileen N. Nadelson, J.) modified only to the extent of granting leave to Citibank, N.A. to serve an amended third-party complaint within 20 days after service of a copy of this order with notice of entry; as modified, orders affirmed, without costs.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Citibank's third-party action based upon the collecting bank's breach of its presentment warranties when the latter obtained payment upon the altered check (see Uniform Commercial Code, § 4-207[c]) was properly dismissed, not having been commenced within six years from the date Citibank honored the item (see CPLR § 213; Hechter v. New York Life Insurance Co., 46 NY2d 34, 39-40; Crockford v. Merchants National Bank, 132 Misc 2d 959). In the circumstances presented, however, Citibank should be permitted to plead over against the collecting bank on the theory of indemnification, since the period of limitations on that cause of action would not begin to run until Citibank is required to pay its depositor, the plaintiff in the main action (see E.S.P., Inc. v. Midway National Bank of St. Paul, 447 N.W.2d 882 [Minn]). While no formal motion to amend was made by Citibank, where the facts alleged make out a viable cause of action and no prejudice is apparent, amendment may be permitted, even on appeal (see Stephan v. Shulman, 130 AD2d 484).
This constitutes the decision and order of the court.
I concur.