PEREZ v. CHARTER ONE FSB

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to rebut the defendant's prima facie showing that it did not instigate the plaintiff's arrest, but merely supplied information to the police who determined that an arrest was appropriate. Therefore, the Supreme Court correctly granted that branch of the defendant's motion which was for summary judgment dismissing the first and second causes of action to recover damages for false arrest and false imprisonment (see Tzambazis v. City of New York, 291 A.D.2d 397; O'Connell v. Luebs, 264 A.D.2d 385; Byrd v. Middleton-Bond, 253 A.D.2d 510, 511; DeFilippo v. County of Nassau, 183 A.D.2d 695, 696-697; Eisenkraft v. Armstrong, 172 A.D.2d 484, 486).

The Supreme Court also correctly granted that branch of the defendant's motion which was for summary judgment on its counterclaim based on the plaintiff's breach of warranty of prior endorsements on a negotiable instrument imposed by UCC 3-417 and 4-207. Unlike the statutory shift of burdens of care between a drawer and drawee bank (see UCC 4-406, [3]; Putnam Rolling Ladder Co. v. Manufacturers Hanover Trust Co., 74 N.Y.2d 340, 345-346), the breach of warranty of prior endorsements is based on strict contractual liability (see UCC 4-207; Bank of N.Y. v. Fleet Bank, 176 Misc.2d 21, 24), as to which the negligence of the beneficiary of the warranty is no defense (cf. Nastro Contr. v. Agusta, 217 A.D.2d 874, 875). Thus, a depository bank (the defendant) is entitled to recover from its customer (the plaintiff) the amounts it was required to pay to a drawee bank for accepting the customer's deposit of a check bearing a prior forged endorsement, the proceeds of which the depository bank had furnished to the customer (see Capital Dist. Tel. Employees Fed. Credit Union v. Berthiaume, 105 Misc.2d 529).

The plaintiff's remaining contentions are without merit.

S. MILLER, J.P., FRIEDMANN, CRANE and RIVERA, JJ., concur.