Olko v. Citibank, N.A.

Judgment, Supreme Court, New York County (Ira Gammerman, JHO), entered December 27, 2005, after a jury trial, awarding plaintiff the total sum of $300,701, affirmed, with costs. In this action to recover the principal sum plus interest on a certificate of deposit (CD), plaintiff presented evidence of the certificate of deposit, thus shifting the burden to defendant bank to establish the defense of payment, and, based on the evidence before it, the jury fairly concluded that that burden had not been met (cf. Rosenstock v Dessar, 109 App Div 10, 12, 13-14 [1905]). The court’s charge was proper and did not misrepresent the testimony of the bank officer. Nor did the court’s remarks and questions constitute the type of prejudicial interference that warrants reversal; rather, they served to clarify the testimony (see Les S. Thompson & Co., LLP v Lucille Murray Child Dev. Ctr., Inc., 13 AD3d 120 [2004]; Delcor Labs, v Cosmair, Inc., 263 AD2d 402 [1999], lv denied 94 NY2d 761 [2000]). It was not error to refuse to admit certain uncertified exhibits offered by defendant. Finally, contrary to defendant’s contention, the complaint was not subject to dismissal by reason of laches, since plaintiff presented the CD immediately upon discovery. We have considered defendant’s remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Marlow and Kavanagh, JJ.