N.Y. Comp. Codes R. & Regs. tit. 3 § 34.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 34.5 - Exceptions

The exceptions to the requirements imposed under section 34.3 of this Part are as follows:

(a) For any deposited item drawn in an amount of more than $5,000, the availability of funds shall be determined according to the depositary bank's policy or, if the customer elects to have the item so cleared on a collection basis (i.e., noncash item basis). Where more than one item, each drawn in an amount no greater than $5,000, totalling an amount in excess of $5,000, is deposited in one business day, the availability of funds for the item or items that bring the amount deposited to an amount in excess of $5,000, shall be determined according to the depositary bank's policy or, if the customer elects to have the item(s) so cleared, on a collection basis (i.e., noncash item basis).

(b) With respect to items deposited by a new customer at a depositary bank, the availability of funds for any item deposited within 30 calendar days of the opening of an account by such customer shall be subject to the depositary bank's policy.

(c) If any account or combination of accounts of a customer has been overdrawn on three separate and distinct occasions within a six-month period all accounts of that customer will be subject to the depositary bank's policy regarding the availability of funds, for a period of six months commencing with the last return for insufficient funds. This exception does not include accounts with overdraft privileges established pursuant to contractual agreement unless the customer's credit line has been exceeded.

(d) In an instance where the depositary bank in good faith doubts the collectibility of funds for an item (e.g., suspicion of bankruptcy of the drawer of a check, suspicion of fraud), the depositary bank may make funds available for such item on a collection basis, or according to the depositary bank's policy. The customer of the account must be notified by the depositary bank of this action as soon as possible.

(e) The availability of funds shall be governed by the depositary bank's policy in the case of any items drawn on an office, including an office of the depositary bank, located outside any of the United States and the District of Columbia.

(f) Nothing contained in this Part shall prohibit a depositary bank and a retail customer from agreeing in writing to a greater period of time than that prescribed by this Part for making funds available for withdrawal because of special circumstances, provided that such agreement is not contained in a preprinted form and is not a usual, regular business practice of the depositary bank.

(g) Delay by a depositary bank beyond time limits prescribed or permitted by this Part is excused if caused by interruption of communication facilities, suspension of payments by another bank, war, emergency conditions or other circumstances beyond the control of the depositary bank provided it exercises such diligence as the circumstances require.

N.Y. Comp. Codes R. & Regs. Tit. 3 § 34.5