Ognibene withdrew $20 at an automated teller machine (ATM) through the use of his Citibank card and

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Ognibene withdrew $20 at an automated teller machine (ATM) through the use of his Citibank card and the entry of his confidential personal identification number. As he did so, he was evidently observed by an individual who was using a telephone located between Ognibene’s ATM and an adjacent ATM. The individual was seemingly reporting to the bank that the adjacent ATM was not working. The person, speaking into the telephone said, “I’ll see if his card works in my machine.” He then borrowed Ognibene’s card and inserted it in the other ATM several times, finally stating, “Yes, it seems to be working.” Then he returned Ognibene’s card. Later, Ognibene discovered $400 had been withdrawn from his account by the person. Ognibene then sued the bank to have the $400 recredited to his account claiming it was an unauthorized transaction under the EFTA. The bank refused, stating that by giving the other person the card, Ognibene had “authorized” the transaction and was fully liable even though Ognibene had obviously not benefited from the transaction at all. Do you agree with the bank or with Ognibene? (Ognibene v. Citibank N.A., 446 N.Y.S. 2d 845)

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