Targoff v. Wells Fargo Bank NA

The following papers were considered in connection with defendant’s motion to dismiss plaintiff’s first amended complaint pursuant CPLR 3211 (a) (1) and (7): Papers Numbered Notice of Motion, Affirmation, Affidavit, Exhibits 1 – 8, Memorandum of Law 1 Memorandum of Law in Opposition 2 Memorandum of Law in Reply 3 DECISION AND ORDER   Plaintiff Michael Targoff commenced this action against defendant Wells Fargo Bank, N.A. (“Wells Fargo”), sounding in negligence and breach of contract, on the theory that Wells Fargo allowed wire fraud to be perpetuated against him. Most of the allegations in the amended complaint are undisputed. Plaintiff intended to make a $1 million investment with a real estate developer, Wilcox Qualified Opportunity Zone Fund #6 (“Wilcox”). To carry out that intention, on May 23, 2019, he complied with instructions he received in an email which appeared to be from Wilcox, directing him to wire his funds to a specified account number ending in 7684 at a Wells Fargo branch in Boca Raton, Florida. The following day, plaintiff learned that Wilcox had not received his funds, and that it did not hold any accounts at Wells Fargo. Plaintiff then instructed his bank to contact Wells Fargo, asking it to freeze the account and return the $1 million. It is undisputed that on or about May 31, 2019, Wells Fargo returned $982,749.81 to plaintiff with the notation “return of $1,000,000, less fees.” Plaintiff’s original complaint, filed on June 25, 2019, contained a single cause of action for negligence, alleging that defendant failed to comply with federal “Know Your Customer” banking regulations promulgated under the USA PATRIOT Act (see Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism [USA PATRIOT Act] Act of 2001, Pub L 107-56, 115 Stat 272, amending 31 USC §5318 [l]). His first amended complaint, filed on September 3, 2019, alleges in addition that Wilcox assigned its right, title, and interest in the 7684 account to him, despite earlier claiming that Wilcox did not own any interest in such account (see first amended complaint