Opinion
345 Index No. 651984/19 Case No. 2023–00579
05-30-2023
ERA CAPITAL L.P., Plaintiff–Appellant–Respondent, v. SOLEIL CHARTERED BANK et al., Defendants, Regions Bank, Defendant–Respondent–Appellant.
Frydman LLC, New York (David S. Frydman of counsel), for appellant-respondent. McGlinchey Stafford PLLC, New York (Mikelle V. Bliss of counsel), and Garbett, Allen & Roza, P.A., Miami, FL (Brian P. Yates, of the bar of the State of Florida, admitted pro hac vice, of counsel), for respondent-appellant.
Frydman LLC, New York (David S. Frydman of counsel), for appellant-respondent.
McGlinchey Stafford PLLC, New York (Mikelle V. Bliss of counsel), and Garbett, Allen & Roza, P.A., Miami, FL (Brian P. Yates, of the bar of the State of Florida, admitted pro hac vice, of counsel), for respondent-appellant.
Kern, J.P., Friedman, Kennedy, Scarpulla, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered January 11, 2023, which granted defendant Regions Bank's (Regions) motion for summary judgment in part and dismissed plaintiff's breach of fiduciary duties claim, and denied Regions's motion for summary judgment on plaintiff's negligent misrepresentation claim, unanimously affirmed, without costs.
The 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 N.Y.3d 108, 115, 886 N.Y.S.2d 671, 915 N.E.2d 616 [2009] ; see also Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 21, 862 N.Y.S.2d 311, 892 N.E.2d 375 [2008] ; MAFG Art Fund, LLC v. Gagosian, 123 A.D.3d 458, 459, 998 N.Y.S.2d 342 [1st Dept. 2014], lv denied 25 N.Y.3d 901, 2015 WL 1422950 [2015] ). Regions, 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 A.D.3d 840, 841–842, 907 N.Y.S.2d 476 [1st Dept. 2010], lv denied 16 N.Y.3d 709, 2011 WL 1237542 [2011] ; compare EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 20, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).
Supreme Court properly denied summary judgment on the negligent misrepresentation claim. The evidence demonstrates that the parties may have had "a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff." Further, there are triable issues of fact as to whether Regions’ statement that the issuing bank was good to proceed "was incorrect," and whether plaintiff reasonably relied on the statement when accepting the letter of credit on which payment was ultimately denied ( Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011], quoting J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148, 831 N.Y.S.2d 364, 863 N.E.2d 585 [2007] ).
Contrary to Regions’ contention, no expert is necessary to explain the standard of care for imparting correct information to the judge at a bench trial and this case does not involve any specialized knowledge of a bank's duties and internal operations (compare Adam Intl. Trading v. Manufacturers Hanover Trust Co., 150 A.D.2d 294, 295, 542 N.Y.S.2d 1 [1st Dept. 1989], appeal dismissed 74 N.Y.2d 844, 546 N.Y.S.2d 560, 545 N.E.2d 874 [1989] ).
We have considered the remaining contentions and find them unavailing.