d . See also Regatos v. North Fork Bank , 431 F.3d 394, 395 (2d Cir. 2005). The second reason the Appellants have the better argument stems from the fact that Section 204 is narrower than Section 505.
In fact, the comments to § 4A-505 cite to § 4A-204 for the proposition that "the receiving bank is obliged to refund the [fraudulent] payment to the customer and this obligation to refund payment cannot be varied by agreement. " Miss. Code Ann. § 75-4A-505 cmt. 1 (West 2010) (emphasis added); see alsoRegatos v. N. Fork Bank , 257 F. Supp. 2d 632, 644 (S.D.N.Y. 2003), aff'dRegatos v. N. Fork Bank , 431 F.3d 394 (2d Cir. 2005) ("Consideration of the structure of Article 4A, along with its underlying purpose and policies, leads to the conclusion that the drafters did not intend to permit a bank and its customer to vary the one year notice period by agreement."). Mississippi Code § 75-4A-204(b), in turn, explicitly states that the obligation of a bank to refund payments as stated in § 4A-204(a) "may not be otherwise be varied by agreement."
Despite the absence of other procedural safeguards such as telephone logs, recorded conversations and passwords, I find the security procedure followed by the Sao Paulo office, coupled with the signature comparison done at the New York office, to be commercially reasonable.See 257 F. Supp. 2d 632, 646 (S.D.N.Y. 2003), aff'd, 431 F.3d 394 (2d Cir. 2005).Id.
The official comment to UCC section 4A-505 identifies this section as being "in the nature of a statute of repose for objecting to debits made to the customer's account" and indicates that the section is applicable to refunds required by section 4A-303. U.C.C. § 4A-505 cmt. (2002). In support, NBC cites a decision of the New York Court of Appeals on a certified question from the United States Court of Appeals for the Second Circuit. See Mendes Regatos v. N. Fork Bank, 431 F.3d 394 (2nd Cir. 2005). ¶ 19.
Claims brought under Article 4-A are subject to a three-year statute of limitations (see Banca Commerciale Italiana, New York Branch v Northern Trust Intl. Banking Corp., 160 F3d 90, 95 [2d Cir 1998], citing CPLR 214 [2]), unless stated elsewhere in the article (see Regatos v North Fork Bank, 257 F Supp 2d 632, 644 [SD, NY 2003], affd 431 F3d 394 [2005] [discussing UCC § 4-A-505 as a statute of repose]). As applied here, the documentary evidence demonstrates that defendant accepted the three wire transfers in July 2014, and that plaintiff commenced this action on July 9, 2018 (NYSCEF Doc No. 10 at 1).
Although UCC Article 4 is clearly applicable to the accounts at issue, Capital One argues that ATM withdrawals at issue are subject to the EFTA (15 USC § 1693 et seq.) and its implementing regulation, designated as "Regulation E" (12 CFR Part 205). While it is true that the term "consumer" is defined in the EFTA as "a natural person" (15 USC § 1693a [6]), and the EFTA governs ATM withdrawals to and from bank accounts "established primarily for personal, family, or household purposes" (15 USC § 1693a [2]; see also 12 CFR 205.2 [b] [1]) and is thus inapplicable to business entities like plaintiff (see Ironforge.com v Paychex, Inc., 747 F Supp 2d 384, 402 [WDNY 2010]; Regatos v North Fork Bank, 257 F Supp 2d 632, 638 n 10 [SDNY 2003], affd 431 F3d 394 [2d Cir 2005]), the EFTA and Regulation E are nevertheless instructive and persuasive in this commercial context. Pursuant to 15 USC § 1693a (7):