Lembo v. Marchese

Dr. Lembo sued TD Bank claiming common law conversion and negligence. The doctor sued after two of his employees took possession of numerous checks totaling several hundred thousand dollars, forged Lembo’s endorsement on the checks, and deposited the proceeds from the forged checks into their personal accounts at TD Bank. Dr. Lemo asserted the bank knew or should have known that the employees were not permitted to negotiate checks made payable to Dr. Lembo. The trial court dismissed the suit, ruling the UCC governed Lembo’s remedies against TD Bank and that “common law negligence is not such a remedy” in the absence of a “special relationship” between Lembo and the bank. After the Appellate Division affirmed in part and reversed in part, the NJ Supreme Court affirmed the trial court. 


The Court found that Dr. Lembo’s common law conversion claim was preempted by the UCC, and his common law negligence claim could be sustained. Unless the facts establish a special relationship between the parties created by agreement, undertaking, or contract that gives rise to a duty, the sole remedies available in cases involving the processing of checks with forged endorsements are those provided in the UCC.  

LEMBO