Summary
dismissing breach of fiduciary duty claim arising from depositor's intra-bank transfer because the bank had no fiduciary duty to depositor
Summary of this case from Abehrstock v. JPMorgan ChaseOpinion
655131/2019
05-08-2020
Glender GRANT, Plaintiff, v. APPLE BANK FOR SAVINGS and John Doe 1-3, Defendants.
Marion & Allen, P.C., New York, NY (Roger K. Marion of counsel), for plaintiff Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York, NY (Dean G. Yuzek and Jennifer B. Zourigui of counsel), for defendants.
Marion & Allen, P.C., New York, NY (Roger K. Marion of counsel), for plaintiff
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York, NY (Dean G. Yuzek and Jennifer B. Zourigui of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17 were read on this motion to DISMISS.
This action arises out of a dispute between plaintiff Glender Grant and defendant Apple Bank for Savings over a intra-bank transfer made by Glender (putatively pursuant to a power of attorney), which Apple Bank later reversed. Glender has sued for breach of contract and breach of fiduciary duty. Apple Bank moves to dismiss; Glender cross-moves for leave to amend.
BACKGROUND
According to the allegations of the complaint, when Glender Grant's brother Jeffrey was terminally ill, he gave Glender and her son (nonparty Roxdale Grant) a power of attorney. Glender (jointly with Roxdale) and Jeffrey each held accounts at Apple Bank. In June 2013, Glender and Roxdale presented the power of attorney to Apple Bank, which accepted it.
In August 2013, Roxdale closed Jeffrey's account and transferred the money in the account (approximately $45,000) to Glender and Roxdale's joint account, putatively as an exercise of authority under the power of attorney. Jeffrey died in September 2013. In October 2013, Apple Bank reversed the transfer and placed the $45,000 back in Jeffrey's account. Apple Bank concluded that the transfer constituted a gift from Jeffrey to Roxdale and Glender and that the power of attorney Jeffrey had given them did not contain the required rider permitting such gifts.
In July 2016, following conversations between Glender and officers at Apple Bank, the bank wrote a letter to Glender laying out the circumstances leading to the reveral of the transfer (as Apple Bank saw them), and stating the bank's position that as the matter stood, neither Glender nor Roxdale had a legal interest in Jeffrey's account or in the $45,000.
In September 2019, Glender brought this action, asserting claims against Apple Bank for breach of contract and breach of fiduciary duty. Apple Bank now moves to dismiss under CPLR 3211 (a) (1) and (a) (7). Glender cross-moves for leave to amend her complaint under CPLR 3025 (b). Apple Bank's motion is granted; Glender's cross-motion is denied.
DISCUSSION
Apple Bank's motion seeks dismissal of Glender Grant's breach-of-contract claim under CPLR 3211 (a) (1). This motion "may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." ( Goshen v. Mut. Life Ins. Co. of New York , 98 NY2d 314, 326 [2002].)
Here, the documents on which Apple Bank relies are the signature card that Grant signed to open her account at the bank, and the booklet providing the terms and conditions for that account. Among other things, the signature card states expressly—three lines above Grant's signature—that Grant had "received a copy of Apple Bank for Savings' rules, regulations and disclosures concerning this account and agree to be bound thereby." (NYSCEF No. 7.) Grant therefore was bound by the bank's rules for her account. (See Dietrich v. Chemical Bank , 115 Misc 2d 713, 715 [Sup Ct, NY County 1981], aff'd on opn. below 92 AD2d 786 [1st Dept 1983].)
Part III of the bank's rules and regulations provides that "[u]nless a shorter time period is expressly stated, any other claim arising out of the maintenance of your account subject to this brochure must be brought within two (2) years of the occurrence(s) that gave right to the cause of action." (NYSCEF No. 8 at 16.) And whether measured from the bank's reversal of the funds transfer in 2013, or the bank's letter to Grant in 2016, Grant commenced this action more than two years after the occurrence giving rise to her cause of action. Documentary evidence therefore conclusively establishes that Grant's breach-of-contract claim is untimely.
Apple Bank's motion seeks dismissal of Grant's fiduciary-duty claim under CPLR 3211 (a) (7). In reviewing a motion to dismiss on this ground, this court must "determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action." ( 1199 Hous. Corp. v. Int'l Fid. Ins. Co. , 788 N.Y.S.2d 88, 89 [1st Dept. 2005].) This court concludes that Grant has not stated a cognizable claim here.
To state a claim for breach of fiduciary duty, "a plaintiff must allege the existence of a fiduciary relationship, misconduct by other party, and damages directly caused by that party's misconduct." ( Castellotti v. Free , 138 AD3d 198, 209 [1st Dep't 2016].) Grant's allegations do not establish that a fiduciary relationship existed between herself and Apple Bank. "The legal relationship between a borrower and a bank is a contractual one of debtor and creditor and does not create a fiduciary relationship between the bank and its borrower or its guarantors." ( Hartsko Fin. Servs., LLC v. JP Morgan Chase Bank, N.A. , 125 AD3d 448, 448 [1st Dep't 2015].)
Glender Grant asserts that Apple Bank assumed a fiduciary duty here when it took over the accounts of Emigrant Savings Bank by contract in April 2013, because Jeffrey Grant's Apple Bank account had formerly been an Emigrant account. But at best, any fiduciary duty owed under that theory would have run from Apple Bank to Jeffrey , not to his sister Glender. Glender does not explain how she can bring an action for damages to herself based on a supposed duty that Apple Bank owed to Jeffrey—particularly given that the basis for Glender's suit here is Apple Bank's transfer of funds from Glender's account back to Jeffrey's account .
Finally, Grant's cross-motion for leave to amend is denied. Grant does not provide a copy of her proposed amended complaint, as CPLR 3025 (b) requires. Nor does she otherwise identify the changes or additions that she would make to her complaint if given leave to amend.
Accordingly, it is hereby
ORDERED that Apple Bank's motion to dismiss under CPLR 3211 is granted, and the complaint is dismissed, with costs and disbursements to be taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that Glender Grant's cross-motion for leave to amend under CPLR 3025 is denied; and it is further
ORDERED that Apple Bank shall serve a copy of this order with notice its of entry on all parties and on the office of the General Clerk and on the office of the County Clerk, who is directed to enter judgment accordingly; and it is further
ORDERED that notice of entry may be served by mail or overnight delivery service, with Apple Bank to e-file a copy of notice of entry (and accompanying affidavit(s) of service) on NYSCEF once filing of notices of entry in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks.