## Facts

- Robert Porter maintained a checking account with Citibank and regularly used Citibank ATMs.
- On August 23, 1983, Porter attempted to withdraw $100; the ATM debited his account but dispensed no cash. He promptly reported the incident to bank personnel.
- On September 5, 1983, Porter attempted two separate $200 withdrawals; the ATM debited his account for each transaction but dispensed no cash. He reported both incidents to branch management.
- Citibank’s records reflected one $100 withdrawal and two $200 withdrawals, totaling $500 debited from Porter’s account.
- Citibank employees testified that after the August 23 incident the machine appeared “in balance,” and after the September 5 incidents the machine showed a $90 cash overage.
- Citibank employees also testified the ATM was out of balance once or twice per week (typically not more than $100), and that sometimes a later customer received cash intended for a prior user.
- The court credited Porter’s history as a frequent ATM user without prior banking disputes.

## Issues

1. Whether a depositor’s credible testimony that an ATM dispensed no cash, combined with circumstantial evidence of ATM imbalance and error, is sufficient to prove the bank wrongly debited the account.
2. How the burden of persuasion should be allocated where the bank controls the ATM instrumentality and the relevant records, and the bank’s proof does not conclusively establish that cash was dispensed to the customer.

## Decision

- The court entered judgment for Porter for $500.
- The court found Porter’s account credible and consistent with the circumstances, including prompt reporting and lack of prior disputes.
- The court determined Citibank’s “in balance” evidence and internal records were not conclusive, particularly in light of testimony acknowledging recurring imbalances and occasional misdelivery of cash to subsequent customers.
- The court placed the risk of uncertainty on the bank because it controlled the ATM and information needed to verify what occurred.

## Legal Principles

- In ATM malfunction disputes, a customer may establish entitlement to recovery through credible testimony supported by circumstantial evidence when direct proof is not reasonably available.
- Where the bank exclusively controls the automated device and the transaction records, and its proof does not clearly resolve whether cash was dispensed, the bank may bear the risk of uncertainty and the burden of persuasive rebuttal.
- Courts may apply reasoning analogous to bailment concepts in bank-customer disputes involving bank-controlled processes and incomplete or unreliable internal procedures or records.

## Conclusion

The court held Citibank liable for $500 debited without cash dispensed, concluding that credible customer testimony and circumstantial evidence of machine error outweighed the bank’s inconclusive internal records, and that the bank should bear the loss where it controls the ATM and the relevant proof.


Porter v. Citibank, N.A., 123 Misc. 2d 28, 472 N.Y.S.2d 582 (Civ. Ct. N.Y.C. 1984)