| Baquerizo v Monasterio |
| 2011 NY Slip Op 08890 [90 AD3d 587] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Giovanni Baquerizo et al., Appellants, v VivianaMonasterio, Respondent. |
—[*1] Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito and John H. Somoza ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of an escrow agreement, the plaintiffsappeal from an order of the Supreme Court, Nassau County (Warshawsky, J.), entered October26, 2010, which granted the defendant's motion pursuant to CPLR 3211 (a) to dismiss thecomplaint.
Ordered that the order is affirmed, with costs.
An escrow agent "not only has a contractual duty to follow the escrow agreement, butadditionally becomes a trustee of anyone with a beneficial interest in the trust" (Takayama vSchaefer, 240 AD2d 21, 25 [1998]). Accordingly, the escrow agent has a duty not to deliverthe property held in escrow to anyone except upon "strict compliance with the conditionsimposed" in the escrow agreement (id. at 25 [internal quotation marks omitted]). "Thus,an escrow agent can be held liable for breach of the escrow agreement and breach of fiduciaryduty as escrowee" (id. at 25; see Grinblat v Taubenblat, 107 AD2d 735 [1985]).An attorney holding funds in escrow owes a fiduciary duty "to 'anyone with a beneficial interestin the trust' " (Levit v Allstate Ins. Co., 308 AD2d 475, 477 [2003], quotingTakayama v Schaefer, 240 AD2d at 25).
While we disagree with the Supreme Court's reliance upon lack of privity as a basis fordismissing the causes of action sounding in breach of the subject escrow agreement, breach of theduty of good faith and fair dealing, and breach of fiduciary duty, the defendant's motion todismiss those causes of action was properly granted, pursuant to CPLR 3211 (a) (1). Thedocumentary evidence submitted on the motion included the escrow agreement, which containedan exculpatory clause that bound the plaintiffs and waived any liability against the defendantexcept for gross negligence or willful misconduct (see Sommer v Federal Signal Corp.,79 NY2d 540, 553 [1992]). Furthermore, the complaint did not contain any factual allegations ofgross negligence or willful misconduct, and the documentary evidence "conclusivelyestablishe[d]" (Leon v Martinez, 84 NY2d 83, 88 [1994]) that the defendant was notgrossly negligent, did not engage in willful misconduct, and did not breach the escrowagreement, but instead properly disbursed the escrow funds upon receipt of notification from theplaintiffs specifically authorizing their release (see generally Abrahams v Commonwealth Land Tit. Ins. Co., 81 AD3d759 [2011]). Mastro, A.P.J., Florio, Lott and Cohen, JJ., concur.