As was implicitly recognized by this Court in 1983 ( see, Banco Di Roma v. Merchants Bank, 92 A.D.2d 42), holder in due course status will be denied to a bank that takes a cashiers check with notice of fraud by another ( see, Turbine Fed. Credit Union v. Amsterdam Fed. Sav. Loan Assn., 224 A.D.2d 753, 754). Here, however, summary judgment was properly granted to plaintiff bank upon the finding that plaintiff was a holder in due course, because defendant did not sustain its burden to provide evidentiary proof that plaintiff took the instruments in question with actual notice of the defense of fraud or in bad faith. The burden of establishing such actual notice, even to the extent necessary to avoid summary judgment, is an exacting one as it must be met without recourse to any "objective test which might involve constructive knowledge" ( Hartford Acc. Indem. Co. v. American Express Co., 74 N.Y.2d 153, 162). Similarly, the counterclaim for commercial bad faith ( see, Prudential-Bache Sec. v. Citibank, 73 N.Y.2d 263, 275-276) was properly dismissed, since defendant did not produce evidence that plaintiff was an actual participant in the nonparty clients scheme ( see, e.g., Streng Oldsmobile v. Fleet Bank, 245 A.D.2d 1032). We have considered defendant's remaining arguments and find them to be without merit.
Concur — Milonas, J. P., Torn, Andrias and Saxe, JJ.