| Oddo Asset Mgt. v Barclays Bank PLC |
| 2011 NY Slip Op 04523 [84 AD3d 692] |
| May 31, 2011 |
| Appellate Division, First Department |
| Oddo Asset Management, Appellant, v Barclays Bank PLCet al., Respondents, et al., Defendants. |
—[*1] Linklaters LLP, New York (Lance Croffoot-Suede of counsel), for Barclays respondents. Cahill Gordon & Reindel LLP, New York (Dean Ringel of counsel), for the McGraw-HillCompanies, Inc., respondent.
Appeal from order, Supreme Court, New York County (Barbara R. Kapnick, J.), enteredApril 26, 2010, which, inter alia, granted the Barclays defendants' and The McGraw-HillCompanies, Inc.'s motions to dismiss the complaint as against them, deemed appeal fromjudgment, same court and Justice, entered May 12, 2010 (CPLR 5501 [c]), dismissing thecomplaint, and, so considered, the judgment unanimously affirmed, with costs.
The causes of action for aiding and abetting a breach of fiduciary duty fail to allege that thecollateral managers of the structured investment vehicles (SIV-Lites) had any contact orrelationship with plaintiff such as would give rise to an underlying fiduciary duty to plaintiff(see Kaufman v Cohen, 307 AD2d 113, 125 [2003]). Plaintiff's creditor-debtorrelationship with the SIV-Lites did not give rise to such a fiduciary duty (see SNS Bank v Citibank, 7 AD3d352, 354 [2004]). Even if, as plaintiff urges, a different standard of fiduciary duty wereappropriate based on the nature of investments in structured investment vehicles, the result wouldbe the same, since no relationship is alleged to have existed between plaintiff and the collateralmanagers (see Eurycleia Partners, LP vSeward & Kissel, LLP, 12 NY3d 553, 561-562 [2009]).
The causes of action for tortious interference with a contract fail to allege an actual breach ofthe underlying contract (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424-425[*2][1996]; Marks v Smith, 65 AD3d 911, 916 [2009], lv denied 15NY3d 704 [2010]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Tom, J.P., Saxe, Acosta, Freedman and Abdus-Salaam, JJ.
[Prior Case History: 36 Misc 3d 1205(A), 2010 NY Slip Op 52449(U).]