Clark v. Marine Midland Bank, Inc. , 413 N.Y.S.2d 9 ( 1979 )

Silverman, J.,

dissents in the following memorandum: I would reverse the order to the extent appealed from and grant the motion to dismiss the first and fourth causes of action for failure to state a cause of action. In my view, the complaint fails to comply with the requirement of stating "the material elements of each cause of action” (CPLR 3013) even within the liberal interpretation of that requirement (Foley v D’Agostino, 21 AD2d 60). The action, intended as a class action, is brought by plaintiffs, depositors in defendant Chase Manhattan Bank and other banks, attacking the custom of the banks of imposing a $4 to $5 charge for checks issued by depositors and not honored because of insufficient funds in the depositors’ account. The fourth cause of action purports to allege a breach of contract. But all it says is that the agreement with the defendants, pursuant to which the checking accounts are maintained "made no mention of the fact that a penalty would be imposed.” This is far from saying that there was an agreement that no penalty would be imposed. The minimum element for an action of breach of contract is an allegation of the contractual promise which was breached; in the present case, this would require an allegation that the bank agreed not to impose this charge; there is no such allegation. The first cause of action alleges that the charge is "grossly disproportionate to the actual costs,” and thus a penalty. It goes on to allege that the banks’ actions in charging this penalty are in violation of section 1-106 of the Uniform Commercial Code and "also violate Article 4 of the UCC and other applicable laws and regulations.” Article 4 of the Uniform Commercial Code contains 37 sections, many of them with several subdivisions. Nowhere are defendants or the court told which of these numerous sections is violated. And of course they are given no clue as to the "other applicable laws and regulations” alleged to be violated. There is a reference to section 1-106 of the Uniform Commercial Code which forbids penalties in connection with the "remedies provided by this Act * * * except as specifically provided in this Act or by other rule of law.” But nowhere is there any allegation as to which remedy provided by the Uniform Commercial Code is being sought by defendants banks.