Opinion
2014-10-21
Malcolm KATT, Plaintiff–Appellant, v. Dmitry MARKOV, Defendant–Respondent.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant. Michael C. Barrows, New York, for respondent.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant. Michael C. Barrows, New York, for respondent.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 3, 2013, which, after a nonjury trial, directed that judgment be entered in favor of defendant, unanimously affirmed, with costs.
By entering into an agreement for the purchase of plaintiff's goods by defendant, the parties terminated their fiduciary relationship of auctioneer and consignor (Dubbs v. Stribling & Assoc., 274 A.D.2d 32, 712 N.Y.S.2d 19 [1st Dept.2000], affd. 96 N.Y.2d 337, 728 N.Y.S.2d 413, 752 N.E.2d 850 [2001] ). Thus, plaintiff's agreement not to sue defendant in exchange for $100,000, which he acknowledged was paid, was correctly analyzed as a transaction at arm's length. Moreover, as a fiduciary, defendant could have obtained a release (Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 278–279, 929 N.Y.S.2d 3, 952 N.E.2d 995 [2011] ). Even if defendant were found to be a fiduciary, plaintiff's constructive fraud claim would fail for lack of evidence that the stated risks of auction (nonpayment, challenges to the bona fides of the sale items) were not true risks ( see generally Brown v. Lockwood, 76 A.D.2d 721, 733, 432 N.Y.S.2d 186 [2d Dept.1980] ). TOM, J.P., RENWICK, MOSKOWITZ, RICHTER, KAPNICK, JJ., concur.