NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2957-06T32957-06T3

PATRICIA A. THOMPSON, as

successor-in-interest to

RAYMOND KEITH RICHARDS,

Plaintiff-Appellant,

v.

WILLY FARAH and

PNC BANK, N.A.,

Defendants-Respondents.

____________________________________________________________

Submitted October 24, 2007 - Decided

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10406-97.

Landman Corsi Ballaine & Ford, P.C., and Paul H. Silverman (McLaughlin & Stern) of the New York Bar, admitted pro hac vice, attorney for appellant (Gerald T. Ford, Natalie Garcia, and Mr. Silverman, on the brief).

Buchanan Ingersoll & Rooney, P.C., attorneys for respondent PNC Bank, N.A. (Allen E. Molnar and Christopher J. Dalton, on the brief).

Pro se respondent Willy Farah did not file a brief.

PER CURIAM

On August 21, 1997, plaintiff Raymond Keith Richards filed this complaint against defendant Willy Farah seeking $26 million in damages based upon an alleged investment agreement. The damages claimed included $10 million that plaintiff deposited in a joint account at the Clifton branch of defendant PNC Bank's (PNC) predecessor, Midlantic Bank, at Farah's request. PNC, which was subsequently added to the litigation, moved for summary judgment and argued that plaintiff's complaint should be dismissed on the following alternative grounds: 1) plaintiff failed to prove PNC was negligent; 2) plaintiff's complaint against PNC violated the Entire Controversy Doctrine (the ECD); and 3) New Jersey's multiple party deposit account statute, N.J.S.A. 17:16I-1 through -17 required dismissal of the complaint. The motion judge granted PNC's motion and dismissed plaintiff's complaint with prejudice.

I.

Although it is this grant of summary judgment entered nearly ten years ago from which plaintiff now appeals, we begin by recounting the tortuous procedural history that surrounds the litigation and in doing so explain the inordinate delay. Plaintiff initially filed his complaint against Farah in August 1997. He thereafter moved for summary judgment based upon a "stipulation" Farah allegedly executed in which he essentially admitted his liability to plaintiff. Although the record fails to reveal the result of that motion, Farah failed to answer the complaint. As a result, plaintiff also applied for the entry of default judgment against Farah, and, on December 11, 1997, a final judgment by default was entered in favor of plaintiff against Farah for the full $26 million.

In the interim, on September 25, 1997, plaintiff also issued a subpoena duces tecum to PNC requesting documents relating to the joint account opened in his and Farah's names. On October 31, 1997, PNC responded and produced over forty pages of documents in response to the request.

On December 16, 1997, without formal motion, plaintiff filed an amended complaint, adding a single claim of negligence against PNC to the existing complaint. Plaintiff alleged that PNC was negligent in permitting Farah to open the joint account in a manner 1) inconsistent with his agreement with Farah; and 2) contrary to customary banking practices, rules and regulations. Plaintiff's claim against PNC sought damages in the amount of $10 million, the amount plaintiff had wired into the joint account, that had been deposited and withdrawn by Farah, and with which Farah had apparently absconded.

On February 27, 1998, asserting the grounds mentioned previously, PNC moved for summary judgment in lieu of answering plaintiff's amended complaint. On April 17, 1998, the motion judge granted summary judgment, determining that plaintiff's claim was barred both procedurally and substantively. He reasoned that because plaintiff failed to assert the claim against PNC in his initial complaint, it was barred by the ECD. He also reasoned that plaintiff's claim against PNC was substantively flawed because plaintiff had not relied on anything that the bank or its employees said, did, or provided to him, and because plaintiff's own conduct constituted superseding or intervening negligence, breaking any alleged chain of proximate causation. The judge failed to address PNC's third asserted ground for relief--that New Jersey's substantive banking law barred the claim. The order granting summary judgment was entered on April 23, 1998 (the April 1998 order). Following the grant of summary judgment to PNC, plaintiff moved for reconsideration which was denied by order dated July 7, 1998.

In the interim, Farah moved to vacate the prior default judgment entered against him. Before considering the merits of the application, the judge ordered Farah to file a supplemental certification demonstrating a meritorious defense to plaintiff's suit. Farah did so, and on September 29, 1998, the judge entered an order that required Farah to submit to a deposition and provide other discovery, and, opened the default judgment for the purpose of permitting Farah to plead, assert, and prove a meritorious defense. However, somewhat inexplicably, the order also specifically provided that the default judgment against Farah remained "unaffected and in full force and effect" and permitted plaintiff to continue any and all post-judgment enforcement and collection efforts against Farah.

In August of 1998, plaintiff filed a notice of appeal seeking review of the April 1998 order and the denial of his reconsideration motion. However, on November 19, 1998, Farah filed a federal bankruptcy petition resulting in the automatic removal of the proceedings to federal court. Apparently, unaware of the removal, we dismissed plaintiff's appeal on November 20, 1998, finding the April 1998 order to be interlocutory in nature and that plaintiff had failed to seek leave to appeal.

Following the filing of Farah's bankruptcy petition in November of 1998, plaintiff commenced an adversary proceeding against Farah and PNC before the bankruptcy judge, asserting essentially the same claims made in his amended state court complaint. Pursuant to Fed. R. Civ. P. 54(b), plaintiff also petitioned the bankruptcy judge for reconsideration of the April 1998 order.

After considering oral arguments on July 10, 2000, the bankruptcy judge issued a written opinion dated June 19, 2001. She denied plaintiff's motion to revise the April 1998 order concluding that plaintiff's claims of "newly discovered evidence" did not qualify as compelling circumstances under the "law of the case doctrine" and the "new" evidence presented by plaintiff did not bear on the Law Division's judge's previous determination that plaintiff's acts constituted a supervening cause. Because any additional evidence submitted by plaintiff did not materially alter the Law Division judge's analysis, she ruled plaintiff failed to provide sufficient grounds to alter the April 1998 order in any way.

Plaintiff then moved before the bankruptcy judge for an order denying Farah relief from the December 11, 1997, default judgment. On July 16, 2001, the bankruptcy judge granted plaintiff's motion, struck Farah's answer to plaintiff's complaint, and denied Farah's motion to vacate the December 1997 default judgment order.

Plaintiff filed an appeal of the bankruptcy judge's denial of his motion to reconsider the April 1998 order in the federal district court. On December 30, 2003, Judge William J. Martini dismissed that appeal because it had not been timely filed.

Plaintiff appealed Judge Martini's order to the United States Court of Appeals for the Third Circuit. On March 22, 2005, the Court of Appeals reversed Judge Martini's order, concluding that although plaintiff's appeal was untimely, the unusual circumstances of the case warranted a remand to the district court for a hearing on the merits of the appeal of the April 1998 order.

While that remand was pending, the parties consented to Judge Martini's suggestion that the appeal of the April 1998 order would be more appropriately heard by us. On January 10, 2007, Judge Martini remanded the litigation to this court.

II.

We initially consider PNC's argument that we are without jurisdiction to hear this appeal despite the remand from the federal district court occasioned by Judge Martini's order. Defendant asserts that this court lacks jurisdiction because there still exists an "unmodified and unreversed" ruling by the bankruptcy judge upholding the April 1998 order. Defendant claims that since plaintiff never properly perfected an appeal of the bankruptcy judge's June 19, 2001, order, dismissal of this appeal is appropriate under "New Jersey and federal principles of issue preclusion."

In light of the unusual procedural history, we disagree. Plaintiff has never had the opportunity to appeal the April 1998 order or the subsequent denial of his motion for reconsideration. It is quite clear that the bankruptcy judge never considered her review of the order to be an appeal. In her written opinion, she noted that plaintiff's motion was a "second motion for reconsideration," that needed to be addressed because of the "happenstance of removal and the applicability of [Fed. R. Civ. Pro.] 54." In denying plaintiff's motion, she concluded, "[Plaintiff] should address his appellate arguments to an appellate court."

This is precisely what he has now done. Plaintiff's earlier attempt to perfect his appeal was denied because we deemed the order under review to be interlocutory. Although the record is less than clear as to the ultimate outcome of plaintiff's complaint against Farah, the final judgment by default has apparently not been disturbed and, thus, the grant of summary judgment to PNC is no longer an interlocutory order. Therefore, we reject PNC's request to dismiss plaintiff's appeal on procedural grounds as we did when its motion to do so was denied by us on July 16, 2007.

III.

We turn, therefore, to the merits of the appeal. Plaintiff contends that the motion judge's grant of summary judgment was improper because: 1) he had no opportunity to engage in discovery; 2) the judge made improper credibility determinations or otherwise misstated the record; and 3) the judge improperly resolved material factual disputes against him. He also argues that the motion judge's alternative reason for granting the motion--the ECD--was erroneous as a matter of law. While we agree with plaintiff that the complaint should not have been dismissed through application of the ECD, we disagree with his arguments regarding the grant of summary judgment on substantive grounds. We therefore affirm.

We begin by recognizing the well-known standards that guide our consideration of the issues presented. In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide "whether the motion judge's application of the law was correct." Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

Before considering the record, we note that in addition to seeking dismissal of this appeal, PNC also moved before us to supplement the record with materials that were not before the motion judge when he granted summary judgment or denied reconsideration. In the same order denying PNC's motion to dismiss, we further provided that it could include the material in its appendix, subject to plaintiff's argument that the material should not be considered. Plaintiff has objected to our consideration of those materials that are outside the motion record.

We have determined that consideration of those materials would be inappropriate, with the exception of a certification filed by Farah in support of his motion to vacate default judgment. Although that certification was not filed in support of PNC's summary judgment application, it was before the motion judge at the time he reconsidered the grant of summary judgment. With respect to the balance of PNC's submissions, they were not before the motion judge and are not, therefore, properly before us. R. 2:6-1(a)(1). From the undisputed motion record, however, we can glean the following material facts.

On April 12, 1996, plaintiff, a citizen of the United Kingdom, entered into an investment agreement with Commercial Capital Investment (CCE) and pursuant thereto agreed to invest $10 million. Although the agreement provided that plaintiff's funds would be deposited in a passbook account "over which [plaintiff] shall have sole control," in the certification he filed in support of his motion for reconsideration, plaintiff acknowledged the funds were to be placed in a passbook bank account requiring two signatures. The funds were to be "collateral for investments [made] by CCE." Plaintiff was also told by his contacts at CCE that Farah would be the CCE trader who would open the account into which the $10 million dollars was to be deposited. Plaintiff at that point did not know Farah and had never met or communicated with him.

In support of its summary judgment motion, PNC furnished the certification of Paul J. Pellegrine, manager of PNC's branch office in Clifton. Pellegrine certified that on May 15, 1996, Farah, a customer known to him and who maintained several accounts at the bank, wished to open a joint account "held by [plaintiff] and himself." Pellegrine claimed that Farah told him that plaintiff lived in Europe and could not personally come to the bank. Pellegrine told Farah that plaintiff would need to sign an "account opening card," and furnish a "written signature guarantee or other form of written verification [of] the authenticity of [his] signature." Pellegrine further certified that on May 17, 1996, Farah returned with a "completed account opening signature card" and "a manually executed signature guarantee" from a bank in London "verifying the authenticity of the signature of [plaintiff]." Pelligrine opened the joint account in Farah's and plaintiff's names, and he certified that he never received "any special instructions . . . or any restrictions on who could make withdrawals or perform transactions[,]" from either man. According to Pellegrine, the account he opened "required only one signature to authorize withdrawals or other transactions."

In his opposing certification, plaintiff admitted that he instructed his London bank to forward the signature guarantee to PNC; however, he denied ever signing the account opening card and denied that the signature guarantee was furnished in conjunction with the opening card. He claimed the signature on the account opening card was not his.

However, plaintiff also certified that several days after the account had been opened, and prior to his wiring any money into the account, his "attorney, Ivo George Caytas, advised [him] by fax that the account was opened" and that "two signatures, that of [] Farah and myself, were required for a withdrawal." Plaintiff attached to his certification a letter from Caytas, an attorney in New York, dated May 20, 1996, advising plaintiff that the account had been opened, and that "[i]n addition to the presentation of the [passbook], two [] concurring signatures are required for each withdrawal." The letter also advised plaintiff that Farah's power of attorney in plaintiff's favor had been forwarded to plaintiff's contact at CCE. Plaintiff also claimed in his certification that Caytas told him that PNC's representative, Patricia Franzetti, confirmed his understanding of the account's two-signature requirement was correct, and furthermore that Caytas was holding the actual passbook for the account. Plaintiff wired $10 million dollars into the account on May 21, 1996.

Farah, in fact, removed most of the money from the account shortly after it was deposited, although it is not clear from the record when that actually occurred. In any event, correspondence in the record reveals that by July 1997, plaintiff had served written demand on the bank to release all monies in the account to his bank in Europe. Ultimately, when the bank did not respond, Caytas forwarded a follow-up letter on plaintiff's behalf. Shortly thereafter, in September 1997, the bank's senior counsel, James B. Griffin, and Pellegrine responded to plaintiff and plaintiff's counsel, someone other than Caytas, advising that the current balance in the account, $318.61, would be forwarded.

In reply to plaintiff's opposition to its motion, PNC furnished a certification from Franzetti. She was the assistant manager at the Clifton branch and personally approved the opening of plaintiff's joint account with Farah. Franzetti further claimed that in late May or early June 1996, someone with a British accent identifying himself as plaintiff inquired about the passbook attached to the account and whether two signatures were required for any account activity. Franzetti certified that she advised the individual that no passbook had been issued for the account, and only one signature was necessary to conduct any business from the account.

Based upon this record, the judge granted PNC's summary judgment motion for the reasons expressed above. When plaintiff moved for reconsideration, he supplied another certification and one from Caytas dated June 2, 1998. Caytas claimed that CCE contacted him and indicated that plaintiff "wanted to have specific confirmation that any funds he deposited into that account could not be withdrawn except on [plaintiff's] signature." Caytas acknowledged he was in receipt of a letter from Franzetti to plaintiff, dated May 17, 1996, regarding the account. Caytas claimed that he called Franzetti at the bank, that she acknowledged she was the author of the letter, and "she expressly confirmed . . . that in addition to presentation of the [s]avings [b]ook, two [] signatures by both of the authorized signatories . . . were required for any withdrawal." The May 17, 1996, letter from Franzetti referenced in Caytas's certification, however, clearly states that under the terms of the joint account, opened by Farah in his and plaintiff's names, "both [were] authorized signers for [the] account."

In his certification in support of the motion for reconsideration, plaintiff asserted that upon receiving Franzetti's letter, he was dissatisfied with its contents. He contacted CCE who in turn contacted Caytas, who he did not apparently know. When he received a letter from Caytas assuring him that two signatures were necessary, he then forwarded the money to PNC by wire transfer.

In support of his motion to vacate the default judgment entered against him, Farah filed a certification dated May 28, 1998. In it he claimed the account specifically provided for either signatory to transact business. He claimed that both he and plaintiff had equal authority to deposit and withdraw monies as they wished.

A.

Plaintiff argues that the dismissal of his complaint based upon the ECD, now codified in Rule 4:30A, was a harsh and unfair result. Plaintiff asserts that the trial judge misapplied the doctrine, and that the subsequent amendment relaxing the ECD's requirements applies to this case under the pipeline retroactivity afforded by the Court in Olds v. Donnelly, 150 N.J. 424 (1997).

We agree that to the extent the judge's determination to dismiss plaintiff's complaint was based upon the ECD, it was a mistaken exercise of judicial discretion. The ECD is intended to promote judicial efficiency while assuring fairness to all parties with a material interest in an action and encouraging the conclusive determination of a legal controversy. Olds, supra, 150 N.J. at 432; see also Karpovich v. Barbarula and Affinito, 150 N.J. 473, 479 (1997)(emphasizing the ECD's underlying principle of fairness to the parties). Following Olds, Rule 4:30A was amended to relax mandatory party-joinder requirements.

Every violation of Rule 4:30A does not necessarily mandate dismissal. Karpovich, supra, 150 N.J. at 483. Instead, courts must exercise discretion and consider the purposes served by the ECD before dismissing with prejudice any subsequently-filed action. Ibid.

We acknowledge that plaintiff's prior counsel improperly amended the complaint without formal motion, R. 4:9-1, and that plaintiff's counsel at the time the reconsideration motion was heard argued the amendment was a nullity. However, the motion judge recognized the practicalities of the situation since plaintiff intended to pursue a claim against PNC. He treated the amendment as having been properly perfected and plaintiff's argument made at the time was entirely disingenuous.

Having treated the matter as an amended complaint with PNC as an added defendant, it was entirely inconsistent for the motion judge to also conclude the amendment was barred by the ECD. Plaintiff's claim against PNC was not made in a subsequent litigation; under the reasoning applied by the judge to the contorted procedural aspects of the case, it was a claim made in the same proceeding. In the language of Rule 4:30A, the claim against PNC was not an "omitted claim[]" and therefore application of the ECD was a mistaken exercise of judicial discretion.

B.

We do agree, however, that the motion judge properly entered summary judgment in favor of PNC on plaintiff's sole claim against the bank. Plaintiff first asserts that since no discovery occurred, except for a subpoena duces tecum served on PNC before it was a party, the "'matter [was] not ripe for summary judgment.'" Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 203 (App. Div. 1996).

Plaintiff's lack of discovery argument must fail because general pleas for additional discovery are insufficient. Instead, plaintiff must "demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action." Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977). In this case, plaintiff has failed to indicate how additional discovery would salvage his claim. The unusual procedural aspects of this case would seemingly permit plaintiff to provide some bona fide basis for a contrary assertion. Although we have not considered the substance of the materials submitted by defendant in its appendix, it is apparently undisputed that depositions of plaintiff, Pelligrine, Franzetti, and other bank employees actually took place as part of the proceedings in bankruptcy court. Yet, plaintiff never moved to supplement the record and instead opposed our consideration of the contents of those materials. Plaintiff has failed to affirmatively assert any fact that may have been disclosed therein so as to justify a claim that additional discovery mattered. See Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div.)(finding summary judgment appropriate without discovery where discovery would not change the outcome), certif. denied, 180 N.J. 354 (2004). Moreover, given the nature of the case, there was an abundance of facts disclosed by the certifications and the documentary evidence upon which defendant's motion was properly decided.

Plaintiff's other argument on appeal is that the motion judge improperly decided the application by making credibility determinations and otherwise resolving material factual disputes against him contrary to the standards enunciated in Brill. We disagree.

Plaintiff's amended complaint against PNC asserted a single claim of negligence. In particular, the complaint alleged that

Due to the negligence of [PNC] in failing to follow the usual and customary rules and regulations, as well as state banking laws, concerning the opening of new jointly held checking accounts, the defendant Farah was able to open a joint account in the names of the plaintiff and defendant by forging and falsifying the signature card used by the bank to verify the signatories on the account.

. . . .

The defendant [PNC] was further negligent in permitting the withdrawal of [$10 million] without proper authorization and with the forged signature of plaintiff.

We concede that the motion judge made repeated references to his incredulity regarding plaintiff's claims. These comments were unwarranted and contrary to the standards by which a summary judgment motion ought to be evaluated. The judge was required to accept plaintiff's version of the facts as true and accord him the benefit of all favorable inferences in the record. Any judgments of credibility from certifications and documents were clearly inappropriate.

However, in order to defeat summary judgment, plaintiff needed to raise a material factual dispute in support of his claim of negligence on the part of the bank. "[A] non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute." Brill, supra, 150 N.J. at 529. When the non-moving party only points "to disputed issues of fact that are 'of an insubstantial nature,'" summary judgment is still appropriate. Ibid. (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)).

To prevail on a negligence claim, plaintiff must establish that 1) defendant owed him a duty of care; 2) defendant breached that duty; 3) defendant's breach was the proximate cause of plaintiff's damages; and 4) plaintiff has suffered actual damages. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). Although much of the banking world is governed by statutes or regulations, we have recognized that a common law claim of negligence against a bank can be asserted. In Pennsylvania National Turf Club, Inc. v. Bank of West Jersey, 158 N.J. Super. 196, 203 (App. Div.), certif. denied, 77 N.J. 506 (1978), we noted that, "[A]lthough a bank has complied with the [] provisions [of the Uniform Commercial Code], such compliance does not necessarily immunize it from ordinary tort liability."

The record undisputedly demonstrates that the only direct contact plaintiff had with any employee or representative of PNC was through the May 17, 1996, letter he received from Franzetti before he transferred any money into the account. That letter clearly indicated Farah had opened an account that permitted either signatory to conduct business without the other's signature. In fact, plaintiff certified that he was uneasy after receiving this letter and contacted CCE who in turn contacted Caytas to confirm his original understanding that all withdrawals from the account would require his signature. Plaintiff never provided any special instructions to PNC regarding the account and any representations he received regarding the terms of the account, other than those contained in Franzetti's letter, were not made by PNC or its representatives. In other words, plaintiff failed to establish PNC owed him any duty other than that associated with a joint deposit account.

Pursuant to N.J.S.A. 17:16I-12(a), a payment made by a bank in conformance with the terms of the joint account "discharges the financial institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties . . . ." That immunity continues unless the bank "has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted." Ibid. It is undisputed that neither plaintiff nor anyone on his behalf ever gave such written notice to PNC so as to alter the terms of the account. Therefore, the plaintiff's claim that PNC was "negligent in permitting the withdrawal of [$10 million] without proper authorization and with the forged signature of plaintiff" cannot be sustained because under the terms of the account as actually opened, there was no obligation to obtain any authorization from plaintiff before permitting Farah to withdraw the funds.

Plaintiff's brief alleges a myriad of factual disputes that he claims should have foreclosed summary judgment because a reasonable fact finder could conclude that prior to his deposit of his funds, PNC negligently misrepresented the terms of the account to his agent, Caytas. "Negligent misrepresentation constitutes '[a]n incorrect statement, negligently made and justifiably relied on,' which results in economic loss." McClellan v. Feit, 376 N.J. Super. 305, 313 (App. Div. 2005) (quoting Kaufman v. i-Stat Corp., 165 N.J. 94, 109 (2000)).

Our review indicates that almost all these alleged disputes can be easily resolved in plaintiff's favor for purposes of our decision. For example, plaintiff contends that whether he ever signed a signature card, whether the bank made representations to him regarding the account, and whether he reasonably relied upon those representations were all disputed material facts.

We accept plaintiff's contention that he never signed the account opening card, and that if any representations regarding the account were ever made to him, he relied upon them. However, plaintiff concedes that no one from PNC ever made any representations to him regarding the account, except those made in Franzetti's letter. Therefore, reduced to its essence, plaintiff's argument is that the "diametrically opposite," "'he said--she said'" certifications of Caytas and Franzetti posed a disputed material fact that if resolved in his favor foreclosed the grant of summary judgment.

We disagree. In denying plaintiff's reconsideration motion, the motion judge viewed plaintiff's actions as lacking "reasonable reliance" upon anything PNC said or did. This conclusion is born out by many of the facts that are undisputed. For example, plaintiff, an acknowledged sophisticated, wealthy investor never signed any account opening card or any other documentation whatsoever furnished by PNC. Nevertheless, when asked to supply a guarantee of his signature so that the account could be opened, he arranged to have his bank in London send a signature guarantee to PNC. Still without executing any documents other than the signature guarantee, he wired $10 million dollars into an account opened by someone he had never met.

Plaintiff acknowledged that before he wired any money, he received Franzetti's May 17 letter that explicitly advised him directly that the account Farah opened did not require plaintiff's signature to permit withdrawals. In response to this correspondence, plaintiff certified that he did not contact PNC or Farah; rather he contacted CCE who arranged to have Caytas contact the bank for the purpose, according to plaintiff's certification, of having PNC "give [him] express written confirmation regarding the terms of the account." Yet, plaintiff never received any such confirmation from the bank and, instead received a letter from Caytas claiming the bank had made such representations to him over the phone. According to plaintiff, it was his "reliance on the confirmation by [] Caytas" that caused him to transfer the money to the account.

Under all these circumstances, plaintiff's claimed reliance upon Caytas's report of a phone conversation the attorney allegedly had with a representative from PNC can not be reasonable reliance as a matter of law. See Zielinski v. Professional Appraisal Assocs., 326 N.J. Super. 219, 227 (App. Div. 1999)(holding plaintiff's reliance under all the circumstances was not reasonable as a matter of law).

Plaintiff's other claim of negligence rests upon the assertion that PNC failed to "follow the usual and customary rules and regulations, as well as State banking laws, concerning the opening of new jointly held checking accounts." In this regard, plaintiff has failed to cite to us any rule, regulation, or statute the he claims the bank violated. Even without discovery, we reasonably assume that after the years of litigation, plaintiff must be able to point to some alleged violation with specificity; yet, he has failed to do so.

Affirmed.

On October 1, 2005, Richards died. On October 20, 2005, the federal district court for the District of New Jersey granted Patricia Thompson's motion to be substituted as plaintiff's successor-in-interest. Although the record is devoid of any application brought in the Law Division to substitute Thompson, PNC has not objected to her substitution. For purposes of this opinion, we refer to plaintiff and his successor in interest as plaintiff and we shall utilize the masculine gender.

Although we have been supplied with a transcript of the oral argument entertained on June 12, 1998, at which time the judge considered both the motion to vacate Farah's default, and plaintiff's motion for reconsideration, we cannot discern from those proceedings the basis of the court's subsequent order as it related to Farah. The order itself is silent as to the judge's reasoning.

On December 17, 1997, Farah had improperly filed a pro se answer to plaintiff's complaint that generally denied its allegations. The record fails to reveal that Farah ever appealed from the bankruptcy judge's order striking his pleading, and he has not participated in this appeal.

Plaintiff's certification references a letter from Caytas to this effect. However, it is not part of the record.

Rule 4:30A, was amended July 10, 1998, to be effective September 1, 1998. The amended rule struck the term "parties" from its language.

For purposes of evaluating the propriety of the grant of summary judgment, we do not consider Franzetti's subsequent claim of a telephone conversation in which she advised plaintiff directly regarding the terms and conditions of the account.

(continued)

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A-2957-06T3

January 25, 2008