When Brian Moynihan faced skeptical congressmen in a hearing recently, some thought his chances at becoming the next CEO of Bank of America (BAC) were diminished greatly. That seemed to play to the advantage of the other internal candidate, chief risk officer Greg Curl, who led the Merrill Lynch negotiations.

But now the New York Times reports that Andrew Cuomo's office has notified the bank that it has some issues with Curl's testimony last month. The news comes at an inopportune moment. The board is convening to pick a new CEO. After being given the okay to talk by lawyers, Curl testified about a phone conversation he had with a lawyer at Wachtell, Lipton, Rosen & Katz on Dec. 3 about the disclosure of Merrill's losses. But when the bank later re-opened its legal records to Mr. Cuomo's staff, "no log emerged proving that the phone call cited by Mr. Curl had taken place." Curl has since told Cuomo's office that he no longer remembered the call.

It's unclear exactly what the import of this is. Will Cuomo try to make an issue of it? It remains to be seen, but it complicates the CEO search. 

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