| Celle v Barclays Bank P.L.C. |
| 2008 NY Slip Op 01438 [48 AD3d 301] |
| February 19, 2008 |
| Appellate Division, First Department |
| Carlos D. Celle, as Power of Attorney and on Behalf of Misano,Inc., Appellant, v Barclays Bank P.L.C. et al., Respondents. |
—[*1] Linklaters LLP, New York City (Paul S. Hessler and Bridget Farrell of counsel), for BarclaysBank P.L.C. and Barclays Private Bank Ltd., respondents. Seward & Kissel, LLP, New York City (Anne C. Patin of counsel), for Royal Bank ofCanada and Royal Bank of Canada Global Private Banking, respondents.
Appeal from order, Supreme Court, New York County (Sherry Klein Heitler, J.), enteredOctober 13, 2006, which granted defendants' motion to dismiss the complaint, deemed to be anappeal from judgment, same court and Justice, entered thereon on October 19, 2006, and, soconsidered, said judgment unanimously affirmed, with separate bills of costs.
The court properly dismissed the complaint in this action where plaintiff, the holder of threenondiscretionary accounts, which were maintained by Barclays Private Bank and transferred toRoyal Bank of Canada Global Private Banking (RBC), asserted causes of action for, inter alia,breach of contract, breach of fiduciary duty, fraud and promissory estoppel, based on allegationsthat defendants mishandled the accounts. Plaintiff's allegation that oral instructions weredisregarded is not actionable inasmuch as the subject agreement provides that communicationsmust be in writing in order to be effective (see Pane v Citibank, N.A., 19 AD3d 278 [2005]), and thecomplaint did not support an inference that written instructions were ignored. Moreover,plaintiff, a sophisticated investor, failed to establish that defendants' acts or omissionsproximately caused a loss of equity in the accounts, liability for which loss was specificallydisclaimed in the agreement.
The breach of fiduciary duty claim was properly dismissed as the agreement "cover[s] theprecise subject matter of the alleged fiduciary duty" (id. at 279). Indeed, brokers fornondiscretionary accounts do not owe clients a fiduciary duty (see Fesseha v TD WaterhouseInv. Servs., 305 AD2d 268 [2003]), and the claim is also duplicative of the breach ofcontract cause of action.
The fraud claim is also duplicative of the breach of contract claim (see River Glen Assoc.v Merrill Lynch Credit Corp., 295 AD2d 274, 275 [2002]), and, in any event, plaintiff failedto allege that defendants knowingly made a false representation that he reasonably relied on tohis detriment. The expressed anticipation that the transfer of the accounts to RBC would proceed[*2]smoothly does not constitute an actionable promise (see Naturopathic Labs. Intl., Inc. v SSLAms., Inc., 18 AD3d 404 [2005]; Albert Apt. Corp. v Corbo Co., 182 AD2d 500[1992], lv dismissed 80 NY2d 924 [1992]).
In the absence of a duty independent of the agreement, the promissory estoppel claim wasduplicative of the breach of contract claim (see Brown v Brown, 12 AD3d 176 [2004]). Furthermore, thepromises were contingent on Barclays' staff accepting positions with RBC and merely indicated ahope that the transition would go well, and plaintiff's reliance was not reasonable given hisawareness of the difficulty in communicating with his Barclays' representatives (see Knight Sec. v Fiduciary Trust Co.,5 AD3d 172, 175 [2004]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.