fiduciary duty claim in New York

2023Because the court properly denied the motion as to the cause of action for breach of fiduciary duty, denying the motion as to the cause of action for aiding and abetting a breach of fiduciary duty was likewise proper ( see Alleco Inc. v Harry & Jeanette Weinberg Found., Inc. , 340 Md 176, 240-241, 665 A2d 1038, 1050 [Md 1995]) as was denial of the unjust enrichment claim, which, as pleaded, ties directly into the fiduciary duty claim.

2023Because the court properly denied the motion as to the cause of action for breach of fiduciary duty, denying the motion as to the cause of action for aiding and abetting a breach of fiduciary duty was likewise proper ( see Alleco Inc. v Harry & Jeanette Weinberg Found., Inc. , 340 Md 176, 240-241, 665 A2d 1038, 1050 [Md 1995]) as was denial of the unjust enrichment claim, which, as pleaded, ties directly into the fiduciary duty claim.

2023Regions, which ultimately acted as adviser for two letters of credit issued by Soleil Chartered Bank ( see UCC § 5-107[c]), did not negotiate on plaintiff's behalf, have authority to bind plaintiff to any agreement with the issuer or plaintiff's borrower, or counsel plaintiff as to the substance of the deals at issue ( see RNK Capital LLC v Natsource LLC , 76 AD3d 840 , 841-842 [1st Dept 2010], lv denied 16 NY3d 709 [2011]; compare ECB I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 20 [2005]).

2020Plaintiff failed to demonstrate that, by virtue of the Purchase [*2]Agreement or otherwise, it had a relationship with the Norinsberg Defendants grounded in a "higher level of trust than normally present in the marketplace," which imposed on the Norinsberg Defendants "a duty to act for or to give advice for [its] benefit" ( see EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005]).

2015To prevail on a breach of fiduciary duty claim, plaintiffs must show "an actual, existing fiduciary relationship between the plaintiff and the defendants at the time of the alleged breach" ( Omnicare, Inc. v NCS Healthcare, Inc. , 809 A2d 1163, 1169 [Del Ch 2002], appeal dismissed in part, revd in part 818 A2d 914 [Del 2003]).

2015To prevail on a breach of fiduciary duty claim, plaintiffs must show “an actual, existing fiduciary relationship between the plaintiff and the defendants at the time of the alleged breach” (Omnicare, Inc. v NCS Healthcare, Inc., 809 A2d 1163, 1169 [Del Ch 2002], appeal dismissed in part, revd in part 818 A2d 914 [Del 2003]).

2015Finally, plaintiffs’ lack of reasonable diligence also bars their claims for equitable estoppel (Matter of Jack Kent Cooke, Inc. [Saatchi & Saatchi N. Am.], 222 AD2d 334, 335 [1st Dept 1995]).

2015Finally, plaintiffs’ lack of reasonable diligence also bars their claims for equitable estoppel (Matter of Jack Kent Cooke, Inc. [Saatchi & Saatchi N. Am.], 222 AD2d 334, 335 [1st Dept 1995]).

2015The doctrine could not save the fiduciary duty claim as to Morgan Stanley for the additional reason that it ceased to be plaintiffs’ broker in 2001, at which time the fiduciary duty was “repudiated” (see Kaszirer v Kaszirer, 286 AD2d 598, 599 [1st Dept 2001]).

2015The doctrine could not save the fiduciary duty claim as to Morgan Stanley for the additional reason that it ceased to be plaintiffs’ broker in 2001, at which time the fiduciary duty was “repudiated” (see Kaszirer v Kaszirer, 286 AD2d 598, 599 [1st Dept 2001]).

2013Given that the fraud claim was deficient, the only branch of the fiduciary duty claim that could have remained was one for “injury to property” However, that claim is time-barred by the three-year statute of limitations (see CPLR 214 [4]; Yatter v Morris Agency, 256 AD2d 260, 261 [1st Dept 1998]), as the alleged injury occurred more than three years before the filing of this action.

2013Given that the fraud claim was deficient, the only branch of the fiduciary duty claim that could have remained was one for “injury to property” However, that claim is time-barred by the three-year statute of limitations (see CPLR 214 [4]; Yatter v Morris Agency, 256 AD2d 260, 261 [1st Dept 1998]), as the alleged injury occurred more than three years before the filing of this action.

2020Any fraud allegations are at most incidental to the fiduciary duty claim ( see Cusimano v Schnurr , 137 AD3d 527, 529 [1st Dept 2016]; Kaufman v Cohen , 307 AD2d 113, 118-119 [1st Dept 2003]).

2015As such, that portion of the fiduciary duty claim is subject to a six-year limitations period {see New York State Workers’ Compensation Bd. v SGRisk, LLC, 116 AD3d at 1154; Paolucci v Mauro, 74 AD3d at 1519-1520 ; see also McDonnell v Bradley, 109 AD3d 592, 594-595 [2013]; Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933, 939-940 [2011]; Monaghan v Ford Motor Co., 71 AD3d 848, 850 [2010]; Kaufman v Cohen, 307 AD2d at 120 ).

2023Finally, defendants' contention that certain claims should have been dismissed because they are, in actuality, derivative claims being brought on behalf of Lizard O's and Ana did not comply with the pre-suit demand is unavailing given that the claims allege that Juan looted the company, so that demand would be futile ( see Bansbach v Zinn , 1 NY3d 1, 9 [2003]; Business Corporation Law § 626[c]).

2023The fiduciary duty claim was appropriately dismissed, as there is no evidence in the record showing that Regions "exercise[d] control and dominance over [plaintiff]" ( People v Coventry First LLC , 13 NY3d 108, 115 [2009]; see also Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21 [2008]; MAFG Art Fund, LLC v Gagosian , 123 AD3d 458 , 459 [1st Dept 2014], lv denied 25 NY3d 901 [2015]).

2023The fiduciary duty claim was appropriately dismissed, as there is no evidence in the record showing that Regions "exercise[d] control and dominance over [plaintiff]" ( People v Coventry First LLC , 13 NY3d 108, 115 [2009]; see also Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21 [2008]; MAFG Art Fund, LLC v Gagosian , 123 AD3d 458 , 459 [1st Dept 2014], lv denied 25 NY3d 901 [2015]).

2022However, there are issues of fact as to whether this was a situation in which there was no reasonable expectation of loss, thus falling under the exception to the general requirement that partners and joint venturers must agree to share in losses as well as profits ( see Lebedev v Blavatnik , 193 AD3d 175, 185-186 [1st Dept 2021]; Don v Singer , 92 AD3d 576 [1st Dept 2012], affg 2011 NY Slip Op 31993[U] [Sup Ct, NY County 2011]).

2020Plaintiff sufficiently pleaded that the LLC had a tangible expectancy of the investment opportunity, making it a corporate opportunity that could be diverted ( see Alexander & Alexander of N.Y. v Fritzen , 147 AD2d 241, 246-249 [1st Dept 1989]).

2020The fiduciary duty claim was correctly dismissed because there was no fiduciary relationship between plaintiff and the Norinsberg Defendants ( see Pokoik v Pokoik , 115 AD3d 428, 429 [1st Dept 2014]).

2020Any fraud allegations are at most incidental to the fiduciary duty claim ( see Cusimano v Schnurr , 137 AD3d 527, 529 [1st Dept 2016]; Kaufman v Cohen , 307 AD2d 113, 118-119 [1st Dept 2003]).

2020As plaintiffs concede, the fiduciary tolling doctrine is also inapplicable here, where plaintiffs seek money damages, rather than accounting or equitable relief ( see Matter of Yin Shin Leung Charitable Found. v Seng , 177 AD3d 463 , 464 [1st Dept 2019]; Cusimano , 137 AD3d at 530-531 ).

2018The granting of the TRO in the 2014 action likewise militates against any finding of lack of probable cause ( see Hornstein v Wolf , 67 NY2d 721, 723 [1986]; Facebook , 134 AD3d at 614 ).

2017The complaint states causes of action for breaches of the CPA and the Ventana Agreement, to the extent indicated above, because the contracts impose continuing obligations, each of which can be breached, triggering a new cause of action with its own limitations period (see Makarchuk v Makarchuk, 59 AD3d 1094, 1095 [4th Dept 2009]; see also Jobim v Songs of Universal, Inc., 732 F Supp 2d 407, 422 [SD NY 2010]; Kermanshah v Kermanshah, 580 F Supp 2d 247, 261 [SD NY 2008]).

2017However, we have found that a breach of fiduciary duty claim was “properly dismissed” as “redundant of the legal malpractice cause of action” (Waggoner v Caruso, 68 AD3d 1, 6 [1st Dept 2009], affd 14 NY3d 874 [2010]), even though the fiduciary duty claim was based on the defendants’ conflict of interest (id.).

2017However, we have found that a breach of fiduciary duty claim was “properly dismissed” as “redundant of the legal malpractice cause of action” (Waggoner v Caruso, 68 AD3d 1, 6 [1st Dept 2009], affd 14 NY3d 874 [2010]), even though the fiduciary duty claim was based on the defendants’ conflict of interest (id.).

2017Bank & Trust Co., 40 AD3d 392, 394 [1st Dept 2007], mod on other grounds 11 NY3d 146 [2008]).

2017Plaintiff argued below that the fiduciary duty claim was not “predicated on the same allegations” as the malpractice claim (Estate of Nevelson v Carro, Spanbock, Raster & Cuiffo, 290 AD2d 399, 400 [1st Dept 2002]) because the former alleged that defendants acted willfully and intentionally due to a *559 conflict of interest, whereas the latter merely alleged that they were negligent.

2017Plaintiff also contended below that the relief sought in the fiduciary duty claim was not “identical to that sought in the malpractice cause of action” (Nevelson, 290 AD2d at 400 ).

2017Co. v Coleman, 305 AD2d 151, 152 [1st Dept 2003] [emphasis added]).

2017As to the timeliness of the breach of the fiduciary duty claim, contrary to Regnier’s assertion, we find that Supreme Court properly applied the open repudiation rule to toll the statute of limitations (see New York State Workers’ Compensation Bd. v Consolidated Risk Servs., Inc., 125 AD3d 1250, 1252-1253 [2015]).