| Curtis-Shanley v Bank of Am. |
| 2013 NY Slip Op 05731 [109 AD3d 634] |
| August 28, 2013 |
| Appellate Division, Second Department |
| Iain Curtis-Shanley, Appellant, v Bank of America,Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Kristen D.Romano and Constantine Despotakis of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals from (1) an order of the Supreme Court, Westchester County (Scheinkman, J.),dated April 9, 2012, which denied his motion to compel the defendant to execute acertificate of readiness for trial, and (2) an order of the same court (Colabella, J.), datedApril 11, 2012, which granted the defendant's motion for summary judgment dismissingthe complaint.
Ordered that the orders are affirmed, with one bill of costs.
The plaintiff alleged several causes of action stemming from the defendant's denialof his application for a letter of credit to effect the purchase of rice from a seller in India.The Supreme Court denied the plaintiff's motion to compel the defendant to execute acertificate of readiness for trial and granted the defendant's motion for summaryjudgment dismissing the complaint.
The defendant established its prima facie entitlement to judgment as a matter of law.In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
In general, the relationship between a bank and its customer is not a fiduciary one,but rather one of creditor and debtor (see Baumann v Hanover Community Bank, 100 AD3d814, 817 [2012]; Call vEllenville Natl. Bank, 5 AD3d 521, 523 [2004]; Nathan v J & I Enters.,212 AD2d 677, 677 [1995]). Here, the Supreme Court properly awarded summaryjudgment dismissing the causes of action alleging breach of contract and breach offiduciary duty since the plaintiff failed to establish the existence of an agreement, and theplaintiff's argument that his status as a depositor created a fiduciary duty is unsupportedby law (see Nathan v J & I Enters., 212 AD2d at 677).
In addition, the plaintiff could not recover damages for negligent infliction ofemotional distress because " 'absent a duty upon which liability can be based, there is noright of recovery for mental distress resulting from the breach of a contract-related duty' "(Rakylar v Washington Mut.Bank, 51 AD3d 995, 996 [2008], quoting Wehringer v Standard Sec. LifeIns. Co. of N.Y., [*2]57 NY2d 757, 759 [1982];see Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002]). Moreover, theconduct complained of was not " 'so outrageous in character, and so extreme in degree,as to go beyond all possible bounds of decency' " so as to support his claim forintentional infliction of emotional distress (Baumann v Hanover Community Bank, 100 AD3d 814,816-817 [2012], quoting Marmelstein v Kehillat New Hempstead: The Rav Aron JofenCommunity Synagogue, 11 NY3d 15, 22-23 [2008]).
Furthermore, the defendant established its prima facie entitlement to judgment as amatter of law dismissing the cause of action alleging fraud. To establish fraud, a plaintiffmust prove a misrepresentation or a material omission of fact which was false and knownto be false by the defendant, made for the purpose of inducing the other party to relyupon it, justifiable reliance, and injury (see Lama Holding Co. v Smith Barney,88 NY2d 413, 421 [1996]; New York Univ. v Continental Ins. Co., 87 NY2d308, 318 [1995]; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403,406-407 [1958]). Here, the defendant submitted evidence demonstrating that it made nomaterial misrepresentation or omission and, in response, the plaintiff failed to raise atriable issue of fact (seeZinnanti v 513 Woodward Ave. Realty, LLC, 105 AD3d 736 [2013]).
The plaintiff's remaining contentions are without merit or improperly raised for thefirst time on appeal.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Rivera, J.P., Dillon, Dickerson and Austin,JJ., concur.