Citibank, N.A. v. Keenan Powers & Andrews PC

137 A.D.3d 715, 27 N.Y.S.3d 385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 2016
• Docket: 692 651075/12
• Status: Published

Opinion

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered December 18, 2014, which, inter alia, denied plaintiffs’ motion for summary judgment on their claims as against defendant Securetitle Agency, Inc. (Securetitle) and granted Securetitle’s cross motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

Where Securetitle’s last act in connection with the alleged conversion and diversion of funds by codefendants occurred three months before codefendants even received the specifically identified fund at issue, such conduct did not constitute substantial assistance of conversion or participation in the subsequent breach of fiduciary duty by codefendants (see Rizer v Breen, 2007 NY Slip Op 32325 [U] [Sup Ct, NY County 2007); see also Kaufman v Cohen, 307 AD2d 113, 125 [1st Dept 2003]). Nor could it constitute conversion of the subsequently obtained funds, as those other funds were the only specifically identified fund (Thys v Fortis Sec. LLC, 74 AD3d 546, 547 [1st Dept 2010]). Plaintiffs misconstrued the motion court’s response to their argument on the alleged concealment of codefendants’ bad acts. The court was correct that, to the extent plaintiffs were trying to argue fraudulent concealment, their opportunity to discover the alleged bad conduct was relevant (see generally DeLuca v DeLuca, 48 AD3d 341 [1st Dept 2008]).

Concur— Tom, J.P., Sweeny, Manzanet-Daniels, Gische and Gesmer, JJ.