Opinion
Decided May 10, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Arnold Guy Fraiman, J.
Salvatore S. Russo for appellant.
Mark Zeichner for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
We assume, without deciding, that plaintiff has standing to bring this action.
Plaintiff does not and cannot seriously dispute that the subject check was never presented to defendant for payment. Thus, plaintiff's complaint, insofar as it asserted a cause of action against defendant for wrongfully dishonoring the check, was properly dismissed.
Liberally construed, plaintiff's complaint also alleges a cause of action against defendant for negligence. However, inasmuch as plaintiff has not offered any evidentiary facts to rebut defendant's proof that plaintiff's account had insufficient funds to cover the check at all times from the time the check was drawn until the account closed, even if defendant had promptly recredited the account with the deposit of the separate certified check, defendant could have properly informed plaintiff's landlord that plaintiff's account did not contain sufficient funds to cover the check.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.