Summary
reversing dismissal of a fiduciary duty claim on economic-loss grounds
Summary of this case from In re Heartland Payment Systems, Inc. Customer DataOpinion
May 9, 1996
Appeal from the Supreme Court, Albany County (Keegan, J.).
Plaintiff's complaint seeks purely economic loss for defendant's breach of contract in refusing to close on a real estate transaction. Third-party defendants moved to dismiss the third-party complaint on the ground that no claim for contribution lies in these circumstances ( see, e.g., Board of Educ. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21). The third-party complaint, however, does not assert a claim for contribution. Rather, it alleges the existence of a contractual and fiduciary relationship between defendant and third-party defendants, and further alleges that third-party defendants used confidential information from the fiduciary relationship to induce defendant to enter into the contract with plaintiff, in derogation of defendant's best interests and in contravention of third-party defendants' fiduciary duty to defendant.
In light of the scope of the inquiry on a CPLR 3211 (a) (7) motion to dismiss ( see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633), Supreme Court did not err in denying third-party defendants' motion. "[A] licensed real estate broker is a fiduciary for his client, and must exercise the utmost good faith and loyalty in his performance" ( Weissman v. Mertz, 128 A.D.2d 609, 610, appeal dismissed 69 N.Y.2d 1036, lv denied 70 N.Y.2d 608). Accepting the allegations of the third-party complaint as true for the purposes of this motion addressed only to the sufficiency of the pleading, defendant has stated a claim based upon the alleged existence of a fiduciary relationship between defendant and third-party defendants and upon third-party defendants' alleged breach of the fiduciary duty owed to defendant as a result of that relationship.
Cardona, P.J., White, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.