Gondeck v. JPMorgan Chase Bank N.A.

Insurance Proceeds Check's Co-Payee Owned Check Through Constructive Possession

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DECISION and ORDER I. INTRODUCTION On December 6, 2022, plaintiff Richard Gondeck (“Gondeck” or “plaintiff”) filed this civil action against defendants JPMorgan Chase Bank, N.A. (“JPMorgan Chase”) and Citibank, N.A. (“Citibank”) (collectively “defendants”) in Supreme Court, Onondaga County alleging state-law claims for negligence and conversion. Ex. A to Dkt. No. 1. Thereafter, defendants jointly removed this action to federal court on February 21, 2023. See Dkt. No. 1. On March 21, 2023, defendants moved to dismiss Gondeck’s complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Dkt. No. 21. In response, plaintiff amended his pleading as of right, Dkt. No. 26, and defendants’ motion to dismiss was denied as moot. Dkt. No. 30. Plaintiff’s second amended complaint¹ asserts claims for negligence and conversion based on defendants’ allegedly wrongful acceptance of, and payment on, a joint homeowners’ insurance check without proper indorsement from plaintiff, who was a named co-payee. Dkt. No. 26. On June 2, 2023, defendants renewed their motion to dismiss plaintiff’s operative complaint.² Dkt. No. 39. The motion has been fully briefed and will be considered without oral argument. II. BACKGROUND This case is about Gondeck’s interest in, and ability to recover, the missing proceeds of a joint homeowner’s insurance check (the “Check”). Compl. 14-15. The Check was originally issued to co-payees: plaintiff, who owned the damaged property, and an aging woman named Jeanne Agrusti (“Agrusti”), who had retained a life estate in the dwelling. Id. at

5, 15. Prior to the events of this case, Agrusti owned a house located in Kirkville, New York (the “Property”). Compl. 4; Ex. A to Compl., Dkt. No. 26-1. She executed a New York Statutory Short Form Power of Attorney (the “Power of Attorney”) appointing Paul Freeman (“Freeman”) as her agent and Meredith Moore (“Moore”) as a successor agent. Compl.

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