Opinion
Argued October 25, 1999
December 13, 1999
In an action to recover damages for the loss of personal property, the plaintiffs appeal from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated July 23, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.
Lawrence B. Newman, New York, N.Y. (Jennifer Hill of counsel), for appellants.
Rosner Nocera, New York, N.Y. (John A. Nocera of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
On March 10, 1982, the plaintiff Clotilde Greco and her husband Dominick Greco, who is not a party to this action, leased a safe deposit box at a bank now operated by the defendant, First Union National Bank Corp. (hereinafter the Bank). The couple's daughter Robin Greco Sulla was subsequently appointed a deputy of the box, and authorized to have full access to it. Under the terms of the safe deposit rental agreement, Clotilde Greco and her husband acknowledged that they agreed to hold the safe as joint tenants, that either of them had the right of access, and "that the opening of the safe by any person other than the lessee shall not be inferred from loss of any of its contents". Over the years, Mrs. Greco allegedly used the safe deposit box to store jewelry, including several diamond rings. On July 3, 1996, when Mrs. Greco and her daughter went to the Bank to check the safe deposit box, they found that the jewelry was missing. Mrs. Greco and her daughter then commenced this action against the Bank to recover damages for the lost jewelry. The Bank subsequently moved for summary judgment, and the Supreme Court granted its motion concluding that the Bank could not be presumed negligent under the terms of the parties' agreement and that the plaintiffs failed to demonstrate that the Bank's failure to prevent unauthorized access to the box caused their loss.
The plaintiffs contend that the Supreme Court erred in granting the Bank's motion for summary judgment because the language of the parties' safe deposit agreement was insufficient to alter the common-law rule that a bank which rents safe deposit boxes to its customers is a bailee, and may be presumed negligent for the failure to return property entrusted to its care. However, even assuming that the presumption of negligence was not obviated by the parties' agreement (see, Viehelmann v. Manufacturers Safe Deposit Co., 303 N.Y. 526 ; cf., Uribe v. Merchants Bank of N.Y., 91 N.Y.2d 336 ), we find that the Bank's evidentiary submissions were sufficient to overcome the presumption. The Bank's submissions established that three customers had full access rights to the subject safe deposit box, that the box could not be opened without a customer key, that there was no sign of forced entry into the box, and that the Bank followed procedures designed to prevent unauthorized access, which included verifying customer signatures prior to permitting entry into the safe deposit vault. Accordingly, the Bank established its entitlement to judgment as a matter of law. Since the plaintiffs failed to raise a material issue of fact, the Supreme Court properly granted the Bank's motion for summary judgment dismissing the complaint (see, Sun Yau Ko v. Lincoln Sav. Bank, 99 A.D.2d 943, affd 62 N.Y.2d 938 ; cf., Viehelmann v. Manufacturers Safe Deposit Co., supra).
THOMPSON, J.P., JOY, KRAUSMAN, and GOLDSTEIN, JJ., concur.