Summary
dismissing conversion claim because it was duplicative of breach of contract claim in that "both covered the same subject matter as the express contract among the parties"
Summary of this case from Marc Fisher LLC v. Milberg Factors, Inc.Opinion
2013-07-2
SEBASTIAN HOLDINGS, INC., Plaintiff–Appellant, v. DEUTSCHE BANK, AG., Defendant–Respondent.
Zaroff & Zaroff LLP, Garden City (Richard A. Lafont of counsel), for appellant. Cahill Gordon & Reindel LLP, New York (David G. Januszewski of counsel), for respondent.
Zaroff & Zaroff LLP, Garden City (Richard A. Lafont of counsel), for appellant. Cahill Gordon & Reindel LLP, New York (David G. Januszewski of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, FREEDMAN, CLARK, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 9, 2012, which, to the extent appealed from, granted in part defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
Plaintiff's sixth and ninth claims for breach of contract arising from unauthorized trades were properly dismissed. The agreements expressly absolved defendant from any liability for unauthorized trades by plaintiff's agent. Indeed, as a general matter, the agent's knowledge and conduct would have been imputed to plaintiff at any rate, under basic agency principles ( Kirschner v. KPMG LLP, 15 N.Y.3d 446, 465, 912 N.Y.S.2d 508, 938 N.E.2d 941 [2010] ). The parallel negligence claim (eighth cause of action) was properly dismissed as duplicative of the contract claims ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). Nor was there any showing that the defendant was subject to duties beyond the roughly thirteen written agreements between the parties ( see Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551–553, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992] ).
The conversion claim and quasi contract claims (eleventh through thirteenth causes of action) were also properly dismissed. The conversion claim was duplicative of the contract claim in the ninth cause of action and the quasi contract claims covered the same subject matter as the express contract among the parties ( Kopel v. Bandwidth Tech. Corp., 56 A.D.3d 320, 868 N.Y.S.2d 16 [1st Dept. 2008];Clark–Fitzpatrick, 70 N.Y.2d at 388, 521 N.Y.S.2d 653, 516 N.E.2d 190). Nor was there any dispute as to the validityor enforceability of those agreements, as opposed to their interpretation. Similarly, the seventh cause of action, for breach of the implied covenant of good faith and fair dealing, was properly dismissed as duplicative of the breach of contract claims ( Logan Advisors, LLC v. Patriarch Partners, LLC, 63 A.D.3d 440, 443, 879 N.Y.S.2d 463 [1st Dept. 2009] ). Finally, given that the conversion claim was properly dismissed, the claim for punitive damages based on that conduct was also properly dismissed.