Daskolopoulos v. European American Bank & Trust Co.

— In a negligence action to recover damages, inter alia, for the loss of the contents of a safe deposit box, defendants appeal from an order of the Supreme Court, Queens County (Giaccio, J.), dated January 27,1983, which denied their motion for partial summary judgment. Order affirmed, with costs. Plaintiff seeks to recover damages for defendants’ alleged negligence in permitting certain unauthorized withdrawals of money from his savings account and of cash and other items from his safe deposit box maintained at one of defendants’ branch offices. According to plaintiff, his apartment was burglarized and among the items taken were his savings account passbook and his safe deposit box key. He claims that on the next business day he notified the defendants’ bank of his loss and that he was told not to worry, but to come in at his convenience to open a new account. He says that he was never told to remove the contents of the safe deposit box. Approximately 15 days later plaintiff went to the defendants’ branch office and discovered that during the three-day period following his having notified the bank of the burglary, someone had made withdrawals totaling $1,300 from his savings account and that [1021] his safe deposit box had been emptied of virtually all of its contents. Among the items which plaintiff claims were removed from his safe deposit box were 30 Krugerrands and some $75,000 in cash. Plaintiff contends that the unauthorized withdrawals were occasioned by defendants’ negligent failure to provide the proper and necessary safeguard against such an event. Following joinder of issue, defendants moved for partial summary judgment dismissing so much of the complaint as sought recovery for the 30 Krugerrands and the approximately $75,000 in cash. In support of the motion, defendants assert that recovery for the loss of these particular items was barred by the terms of the lease for the safe deposit box which provided, inter alia, that: “The undersigned (hereinafter Lessee[s]) hereby leases Safe No. 81 from the European American Bank & Trust Company, 866 UN Plaza office, and acknowledges receipt of two keys in connection therewith together with a copy of the Bank’s Rules and Regulations relating to safes. “It is agreed that said safe is leased to the Lessee(s) subject to the Rules and Regulations and as they may thereafter be amended and for the purpose of keeping securities, jewelry, and valuable papers only, and, the Lessee(s) agrees not to use the safe for any other purpose including keeping money therein” (emphasis added). Special Term denied the motion, inter alia, on the ground that the lease — which was for a period of one year — had expired by its terms prior to the time of the unauthorized withdrawals and that defendants had failed to establish that any new contract between the parties contained the same limitation as the original agreement. We agree. Where, after the expiration of a contract fixing the reciprocal rights and obligations of the parties, they continue to do business together, the conduct of the parties may at times permit, or even constrain, a finding that the parties impliedly agree that their rights and obligations in connection with such business should continue to be measured as provided in the old contract. Even in such case, however, the reciprocal obligations arise from the new implied contract and unless an intent to make a new contract is expressed or may be fairly inferred from the conduct of the parties, the obligations of the parties are, as a matter of law, not measured by the terms of the contract which has expired (New York Tel. Co. v Jamestown Tel. Corp., 282 NY 365; see, also, McDonald v Perkins & Co., 133 Wash 622; 22 NY Jur 2d, Contracts, § 203). The lease between the parties had, by its terms, expired prior to the time of the [1022] events in question and the continuance of the relationship was therefore pursuant to an implied contract. In light of plaintiff’s allegations that defendants’ manager entered his delicatessen and solicited his business, and that “[t]he bank was fully aware that I intended to place my valuables and other personal items including cash into this deposit box”, questions of fact exist as to whether defendants, through their alleged knowing acquiescence in plaintiff’s continued use of the safe deposit box for storage of the Krugerrands and cash, waived the inclusion of this limitation on use in the implied contract, and as to whether the new implied contract contained the same exclusions as to the use of the safe deposit box as the original agreement (New York Tel. Co. v Jamestown Tel. Corp., supra). Moreover, plaintiff testified at his deposition that he never read the leasing agreement at the time he executed it and that, while a representative of the defendants read it to him, he understood the document to be some type of signature card. We find that plaintiff has set forth sufficient allegations to raise issues of fact as to whether he misunderstood the nature of the lease obligations and whether the defendants were aware of that misunderstanding (see National Bank v Chu, 47 NY2d 946). Accordingly, the motion for partial summary judgment was properly denied. Gibbons, Brown and Lawrence, JJ., concur.