FILED: KINGS COUNTY CLERK 04/15/2024 02:26 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 501491/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`Index No. 501491/2024
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`HIGH STYLE FLOORS, INC.,
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`Plaintiff,
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`-against-
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`DISCOVER BANK; JOHN DOES 1-10,
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`Defendants.
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`MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
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`MORGAN, LEWIS & BOCKIUS LLP
`
`Arjun P. Rao
`Marcos Sasso
`2049 Century Park East
`Los Angeles, CA 90067
`Telephone: (310) 907-1000
`Email: arjun.rao@morganlewis.com
`
`marcos.sasso@morganlewis.com
`
`Sarah M. Bouskila
`101 Park Avenue
`New York, New York 10178
`Telephone: (212) 309-6175
`Email: sarah.bouskila@morganlewis.com
`
`Attorneys for Discover Bank
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`FILED: KINGS COUNTY CLERK 04/15/2024 02:26 PM
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`Defendant Discover Bank ((cid:147)Discover(cid:148)) respectfully moves pursuant to CPLR 3211(a)(7)
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`for dismissal of the claims asserted by High Style Floors, Inc. ((cid:147)Plaintiff(cid:148)) against Discover due
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`to a failure to state a claim upon which relief can be granted.
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`I.
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`INTRODUCTION
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`The Complaint asserts that Plaintiff fell victim to an all-too common scam: an unknown
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`third party transmitted a fake invoice to Plaintiff which appeared to come from Plaintiff(cid:146)s vendor
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`and Plaintiff mistakenly paid it thinking it was paying its actual vendor. Plaintiff admits that it did
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`not learn of the scam until four days after it transferred the money. By that time the funds
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`transferred by Plaintiff to an account held at Discover had already been transferred again. As
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`unfortunate as the circumstances may be, there is no basis in law to shift Plaintiff(cid:146)s loss to
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`Discover.
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`The law is clear: Discover(cid:151)the bank which received the funds admittedly voluntarily
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`transmitted to it by Plaintiff(cid:151)has no liability to Plaintiff who is not a customer of Discover.
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`Despite Discover(cid:146)s efforts to resolve this dispute informally with counsel for Plaintiff, Plaintiff
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`refuses to dismiss Discover from this action. As a result, Discover respectfully requests that this
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`Court dismiss all claims (for unjust enrichment and violation of Article 4-A of the New York
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`Uniform Commercial Code ((cid:147)Article 4-A(cid:148))) asserted against Discover with prejudice.
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`II.
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`RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
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`Plaintiff asserts that it received an invoice via email with instructions to pay
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`(cid:147)ItalgranitiGroup,(cid:148) a supplier it does business with, by sending funds to an account held at
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`Discover. (See NYSCEF Doc. No. 1 ¶¶ 6-7.) In response, Plaintiff admits that on September 14,
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`2023, it sent an ACH payment in the amount of $61,076.30 to an account at Discover. (Id. ¶ 5.)
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`The Complaint also admits that Plaintiff is a customer of (cid:147)Chase Bank.(cid:148) (Id. ¶ 10 ((cid:147)Plaintiff
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`contacted Chase Bank, from where the funds had been sent . . .(cid:148)).) Plaintiff did not discover the
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`alleged fraud until September 18, 2023(cid:151)four days after the ACH was transmitted. (Id. ¶ 6.) On
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`an unknown date, although necessarily on or after September 18, 2023, Plaintiff asserts that it
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`reported the incident to Chase and that Plaintiff signed a release and indemnity in favor of Chase.
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`(Id. ¶ 10.) The Complaint alleges that the Plaintiff(cid:146)s ACH instructions included the beneficiary
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`name (cid:147)ItalgranitiGroup,(cid:148) but that the Discover account name did not match that name. (Id. ¶¶ 5,
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`9.) The Complaint further alleges that Plaintiff reported fraud to Discover but that (cid:147)Discover failed
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`to hold the funds, or take an action to prevent the withdrawal of the funds.(cid:148) (Id. ¶¶ 11-12.)
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`On January 15, 2024, Plaintiff filed the Complaint against Discover and ten (cid:147)John Doe(cid:148)
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`defendants. See NYSCEF Doc. No. 1. As for a first cause of action against Discover, Plaintiff
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`alleges that Discover (cid:147)received things of value from Plaintiff and not fully paid for the benefit
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`received.(cid:148) (Id. ¶ 18.) As a result, Plaintiff alleges that Discover has (cid:147)become unjustly enriched
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`with money rightfully belonging to Plaintiff.(cid:148) (Id. ¶ 19.) As a second cause of action against
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`Discover, Plaintiff alleges that it is (cid:147)entitled to repayment of the sums transferred pursuant to
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`Article 4-A.(cid:148) (Id. ¶ 23.) Plaintiff seeks an award of unidentified statutory damages, (cid:147)actual,
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`compensatory, consequential, punitive and incidental damages in an amount not less than
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`$61,076.30,(cid:148) as well as costs, attorneys(cid:146) fees and interest. (Id. Wherefore clause.)
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`A.
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`Standard Of Review
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`III. LEGAL ARGUMENT
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`On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must (cid:147)accept the facts as
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`alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference,
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`and determine only whether the facts as alleged fit within any cognizable legal theory.(cid:148) Leon v.
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`Martinez, 84 N.Y.2d 83, 87-88 (1994). The merits of the complaint, or any of its factual
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`allegations, are not assessed, and the court only determines if, assuming the truth of the alleged
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`facts, and the inferences that can be drawn therefrom, the complaint states a legally cognizable
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`claim. See Skillgames, LLC v. Brody, 1 A.D.3d 247, 250 (1st Dep(cid:146)t 2003), citing Guggenheimer
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`v. Ginzburg, 43 N.Y.2d 268, 275 (1977). However, (cid:147)factual allegations that do not set forth a
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`viable cause of action, or that consist of bare legal conclusions, are not entitled to such
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`consideration.(cid:148) Delran v. Prada USA, Corp., 23 A.D.3d 308, 308 (1st Dep(cid:146)t 2005) (internal
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`citations omitted).
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`Furthermore, dismissal should be with prejudice if leave to amend would prove futile. See
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`Thomas Crimmins Contracting Co. v. City of New York, 74 N.Y.2d 166, 170 (1989); Curran v.
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`Auto Lab Serv. Ctr., 280 A.D.2d 636, 637 (2d Dep(cid:146)t 2001); Heckler Elec. Co. v. Matrix Exhibits(cid:150)
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`N.Y., 278 A.D.2d 279, 279 (2d Dep(cid:146)t 2000); Wieder v. Skala, 168 A.D.2d 355, 355 (1st Dep(cid:146)t
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`1990); Desarrolladora Farallon S. de R.L. de C.V. v. Mexvalo, S. de R.L. de C.V., 146 A.D.3d
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`442, 442 (1st Dep(cid:146)t 2017); Putney v. People, 94 A.D.3d 1193, 1195 (3d Dep(cid:146)t 2012); Twitchell v.
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`Town of Pittsford, 78 A.D.2d 586, 586 (4th Dep(cid:146)t 1980).
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`Applying these standards here, the Motion should be granted in all respects.
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`B.
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`The Complaint Fails To State A Claim Against Discover Under Article 4-A.
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`Although the Complaint fails to specify which section of Article 4-A is alleged to have
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`been violated, the Complaint alleges that the beneficiary name listed within Plaintiff(cid:146)s transfer
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`order did not match to the name of the accountholder and therefore Discover (cid:147)should have refused
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`to complete the transaction[.](cid:148) (See NYSCEF Doc. No. 1 ¶¶ 9, 24.) By these allegations, Discover
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`surmises that Plaintiff is attempting to assert a claim against Discover for an alleged violation of
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`Section 4-A-207, which addresses the circumstance where a payment order does not correctly
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`identify the recipient but does have a valid account number. Critically, Section 4-A-207 does not
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`create a private right of action for a non-customer to sue a beneficiary bank. Indeed, the originator
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`of a funds transfer has no claim against any bank except their own bank under Article 4-A.
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`Accordingly, given that Plaintiff is not a customer of Discover, the claim under Article 4-A must
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`be dismissed.
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`Section 4-A-207, entitled (cid:147)Misdescription of Beneficiary,(cid:148) concerns situations where
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`instructions either identify different accounts or an (cid:147)unidentifiable person or account.(cid:148) Relevant
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`here, where (cid:147)a payment order received by the beneficiary(cid:146)s bank identifies the beneficiary both by
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`name and by an identifying or bank account number and the name and number identify different
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`persons . . . if the beneficiary(cid:146)s bank does not know that the name and number refer to different
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`persons, it may rely on the number as the proper identification of the beneficiary of the order.(cid:148)
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`This is what the Complaint alleges to have happened in this instance(cid:151)the beneficiary name
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`allegedly did not match the name of the account holder and Discover credited the funds based on
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`the account number, not the name. The statute sets forth a limited exception whereby the
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`(cid:147)originator(cid:148) is not obligated to pay for the payment order. See 4-A-207(3). Under circumstances
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`where payment of the order is not required, Section 4-A-402, provides the remedial scheme. See
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`4-A-207 cmt. 2; accord Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100-01 (2d Cir. 1998);
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`Wellton Int(cid:146)l Express v. Bank of China (Hong Kong), 612 F. Supp. 3d 358, 364 (S.D.N.Y. 2020).
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`Critically, it is well-established that claims under Article 4-A can only be asserted by the
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`originator (here, Plaintiff) against a receiving bank (here, Plaintiff(cid:146)s own bank). Similar claims by
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`an originator against the beneficiary bank pursuant to various sections of Article 4-A are
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`consistently dismissed for failure to state a claim. For example, in a very similar action, Wellton
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`Int(cid:146)l Express v. Bank of China (Hong Kong), 612 F. Supp. 3d 358 (S.D.N.Y. 2020), plaintiff
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`transferred funds from their Bank of China account to a Wells Fargo Bank PLC ((cid:147)Wells Fargo(cid:148))
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`account after receiving a fraudulent email from an unknown third-party purporting to be a party to
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`whom plaintiff owed a debt. Id. at 361-62. The plaintiff asserted a claim against Wells Fargo, the
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`beneficiary(cid:146)s bank, under Section 4-A-207. The court found that the plaintiff did not have a
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`Section 4-A-207 cause of action against Wells Fargo because the plaintiff was not in privity with
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`Wells Fargo, as Wells Fargo, the beneficiary bank, was not a party to the payment order. Id. The
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`court held that remedies available under this Article 4-A apply (cid:147)only to the parties to a particular
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`payment order and not to the parties to the funds transfer as a whole.(cid:148) Id. at 364, citing Grain
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`Traders, Inc., 160 F.3d at 101. Similarly, in L&M Const. Dry Wall Inc. v. Wells Fargo Bank,
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`N.A., No. 608951/2020, 2022 WL 20472238 (Sup. Ct. Nassau Cnty. March 21, 2022), the plaintiff
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`alleged that it was the (cid:147)victim of a fraudulent creation of an email account and diversion of its
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`payment to a fraudulent account(cid:148) held with Wells Fargo. The court dismissed all of the plaintiff(cid:146)s
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`claims under Article 4-A and held:
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`Similarly, the plaintiff(cid:146)s claim that Wells Fargo violated various sections of the
`New York Uniform Commercial Code falls short. As discussed above, the plaintiff
`conceded that it is not a customer of Wells Fargo. The Complaint also provides
`that, at the time of the transfer, the plaintiff believed that the electronic transfer was
`sent to Allstate. The plaintiff admits that it only became aware that it was the victim
`of a fraudulent diversion after the payment was sent. It is reasonable to conclude,
`then, that the plaintiff authorized the payment at the time of the transfer was made.
`Since the plaintiff is admittedly not a customer of Wells Fargo and authorized the
`wire transfer, its allegations sounding in violations of New York Uniform
`Commercial Code §§ 4-A-202, 4-A-203, 4-A-204, 4-A-205, and 4-A-203 are
`insufficiently pled.
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`Id. at *3; see also Receivers of Sabena SA v. Deutsche Bank A.G., 142 A.D.3d 242, 255 (2016)
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`((cid:147)(cid:145)sound policy reasons(cid:146) support Article 4-A(cid:146)s requirement that each party to an EFT seek redress
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`for a failed transfer only against a party with which it is in direct privity in the chain of payment
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`orders(cid:148)); Nova Mar. B.V.I., Ltd. v. Transvast Shipping Co. Ltd., No. 08-cv-6869, 2009 WL
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`4884162, at *2 (S.D.N.Y. Dec. 16, 2009) ((cid:147)There is no privity between Transvast and Deutsche
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`Bank. Transvast, as originator, issued a payment order to its bank to transfer funds. Transvast(cid:146)s
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`bank then issued a payment order to Deutsche Bank, an intermediary bank, to transfer the funds to
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`the beneficiary. Under sections 402(3) and (4) and Grain Traders, Transvast is in privity with its
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`bank only and has no attachable property interest in the right of refund from Deutsche Bank.(cid:148)).
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`Affirming dismissal of Article 4-A claims by a non-customer, the Second Circuit held:
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`In sum, we agree with the district court(cid:146)s thoughtful analysis and conclude that §
`4(cid:150)A(cid:150)402 allows each sender of a payment order to seek refund only from the
`receiving bank it paid. Not only do the provisions of Article 4(cid:150)A support the district
`court(cid:146)s interpretation, there are sound policy reasons for limiting the right to seek a
`refund to the sender who directly paid the receiving bank. One of Article 4(cid:150)A(cid:146)s
`primary goals is to promote certainty and finality so that (cid:147)the various parties to
`funds transfers [will] be able to predict risk with certainty, to insure against risk, to
`adjust operational and security procedures, and to price funds transfer services
`appropriately.(cid:148) N.Y.U.C.C. § 4(cid:150)A(cid:150)102, cmt. To allow a party to, in effect, skip
`over the bank with which it dealt directly, and go to the next bank in the chain
`would result in uncertainty as to rights and liabilities, would create a risk of multiple
`or inconsistent liabilities, and would require intermediary banks to investigate the
`financial circumstances and various legal relations of the other parties to the
`transfer.
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`Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 102 (2d Cir. 1998) (emphasis added).
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`The Complaint admits that Plaintiff authorized the subject wire transfer and only
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`discovered the alleged fraud days after the fact. The Complaint also admits the Plaintiff is not a
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`customer of Discover. For these reasons, Plaintiff(cid:146)s claims under Article 4-A fail and must be
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`dismissed.
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`C.
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`The Complaint Fails To State A Claim Against Discover Bank for Unjust
`Enrichment.
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`1.
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`Common Law Claims Inconsistent With Article 4-A Are Precluded.
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`Article 4-A is (cid:147)intended to be the exclusive means of determining the rights, duties and
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`liabilities of the affected parties in any situation covered by particular provisions of the Article.(cid:148)
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`UCC 4-A-102, Comment (emphasis added). (cid:147)[A]rticle 4-A was drafted with the intention that it
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`set forth (cid:145)a body of unique principles of law that would address every aspect of the electronic funds
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`transfer process and define the rights and liabilities of all parties involved in such transfers.(cid:146)(cid:148)
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`Golden Door V&I, Inc. v. TD Bank, 123 A.D.3d 976, 977 (2d Dep(cid:146)t 1977), quoting Banque Worms
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`v. BankAmerica Intern., 77 N.Y.2d 362 (1991). Accordingly, Article 4-A comprehensively covers
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`rights and responsibilities concerning electronic funds transfers. Common law claims that (cid:147)would
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`impose liability inconsistent with the rights and liabilities expressly created by Article 4(cid:150)A,(cid:148) are
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`preempted by Article 4-A. Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 103 (2d Cir. 1998)
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`(string citation to supporting authorities); Centre-Point Merch. Bank Ltd. v. Am. Express Bank
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`Ltd., 913 F. Supp. 202, 208 (S.D.N.Y. 1996) ((cid:147)New York courts have precluded common law
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`claims in cases where Article 4-A specifically addresses the subject matter involved.(cid:148)); see also
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`Ekopel D.O.O. v. Citibank, N.A., -- F. Supp. 3d --, 2024 WL 519648, *9 (D.D.C. Feb. 9, 2024)
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`(applying New York law and dismissing claim for unjust enrichment as preempted).
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`Because Plaintiff(cid:146)s claims unequivocally relate to the making of and/or receipt of a funds
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`transfer, Article 4-A controls. Plaintiff admits that Article 4-A applies by interposing a claim that
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`Article 4-A was violated (though the claim fails as a matter of law because no liability under
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`Article 4-A lies against Discover). Thus, Plaintiff(cid:146)s attempt to impose liability on Discover under
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`the common law for conduct that expressly fails as a basis for liability under Article 4-A is
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`inconsistent with the provisions of Article 4(cid:150)A. Plaintiff(cid:146)s claim for unjust enrichment must be
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`dismissed.
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`2.
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`Plaintiff Fails To State A Claim For Unjust Enrichment.
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`Even if not precluded (which it is), Plaintiff(cid:146)s claim for unjust enrichment fails for other
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`reasons as well. Under New York law, to prevail on a claim for unjust enrichment, a plaintiff must
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`establish (cid:147)(1) that the defendant benefitted; (2) at the plaintiff(cid:146)s expense; and (3) that equity and
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`good conscience require restitution.(cid:148) Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield
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`of N.J. Inc., 448 F.3d 573, 586 (2d Cir. 2006) (quoting Kaye v. Grossman, 202 F.3d 611, 616 (2d
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`Cir. 2000)); see also Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir.
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`2004). Stated differently, (cid:147)[a]n unjust enrichment claim (cid:145)lies only where the defendant possesses
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`money or received a benefit which in equity and good conscience the defendant should not retain
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`because it belongs to the plaintiff.(cid:146)(cid:148) UPS Store, Inc. v. Hagan, 99 F. Supp. 3d 426, 439 (S.D.N.Y.
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`2015). However, (cid:147)[t]he general rule that money paid under a mistake of a material fact may be
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`recovered back, although there was negligence on the part of the person making the payment, is
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`subject to the qualification that the payment cannot be recalled when the position of the party
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`receiving it has been changed in consequence of the payment, and it would be inequitable to allow
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`a recovery.(cid:148) Mayer v. City of New York, 63 N.Y. 455, 457 (1875). Here, the Complaint admits
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`that Discover does not possess the subject funds (See NYSCEF Doc. No. 1 ¶ 12) and does not
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`allege any facts that show that Discover received any benefit, much less one at Plaintiff(cid:146)s expense.
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`Accordingly, even if this claim were not precluded (though it is), Plaintiff(cid:146)s claim for unjust
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`enrichment should be dismissed as a matter of law. See Schroeder v. Capital One Fin. Corp., 665
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`F. Supp. 2d 219, 226 (E.D.N.Y. 2009) ((cid:147)While the Plaintiff here alleges wrongful conduct on the
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`part of the Bank, he nowhere alleges, nor can he, that the Bank benefitted from such wrongful
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`conduct. Indeed, the only party that benefitted from the alleged wrongful transfer of funds was the
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`unauthorized third party to whom the funds were transferred. Since there is no benefit to the Bank
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`stemming f[ro]m the allegedly wrongful transfer of funds, the court grants the motion for summary
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`judgment and dismisses Plaintiff(cid:146)s cause of action for unjust enrichment.(cid:148)).
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`IV. CONCLUSION
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`For the foregoing reasons, Discover respectfully requests that the Court enter an order
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`dismissing the Complaint as asserted against it, as well as such other and further relief as this Court
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`deems just, proper and equitable.
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`Dated: April 15, 2024
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`
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`MORGAN, LEWIS & BOCKIUS LLP
`
`
`By: /s/ Sarah M. Bouskila
`Arjun P. Rao
`Marcos Sasso
`2049 Century Park East
`Los Angeles, CA 90067
`Telephone: (310) 907-1000
`Email: arjun.rao@morganlewis.com
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`marcos.sasso@morganlewis.com
`
`Sarah M. Bouskila
`101 Park Avenue
`New York, New York 10178
`Telephone: (212) 309-6175
`Email: sarah.bouskila@morganlewis.com
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`Attorneys for Discover Bank
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`WORD COUNT CERTIFICATION
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`I hereby certify that this Memorandum of Law complies with Rule 202.8-b of the
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`Uniform Civil Rules for the Supreme Court and the County Court. In determining compliance, I
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`relied on the word count of the word-processing system used to prepare the document. The total
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`number of words in this Memorandum of Law, exclusive of the caption and signature block, is
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`2,813.
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`Dated: April 15, 2024
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`
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`By: /s/ Sarah M. Bouskila
`Sarah M. Bouskila
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