Groisman v. Jeffrey Zwick & Associates

• Court: Court of Appeals for the Second Circuit
• Decided: January 6, 2026
• Docket: 25-375
• Status: Unpublished

Opinion

25-375-cv Groisman v. Jeffrey Zwick & Associates

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of January, two thousand twenty-six.

Present:

GERARD E. LYNCH, WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges. _________________________________________

DANIEL GROISMAN,

Plaintiff-Appellant,

v. 25-375-cv JEFFREY ZWICK & ASSOCIATES, JEFFREY ZWICK,

Defendants-Appellees,

MOSHE FELER, AKA YOSEF FELER, AS ASSIGNEE OF A/K/A FELLER, LAW OFFICES OF N.C. CALLER P.C., CARL N. CALLER, JOHN DOES #1-5, XYZ CORPORATIONS #1-5,

Defendants. _____________________________________

1 For Plaintiff-Appellant: JOSEPH H. NEIMAN, Hackensack, NJ

For Defendants-Appellees: HENRY M. MASCIA (Cheryl F. Korman, Amanda R. Griner, on the brief), Rivkin Radler LLP, Uniondale, NY

Appeal from a judgment of the United States District Court for the Eastern District of New

York (Carol B. Amon, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Daniel Groisman appeals a January 22, 2025, order of the United States

District Court for the Eastern District of New York granting Defendants-Appellees Jeffrey Zwick

& Associates and Jeffrey Zwick’s (collectively, “Zwick”) motion for summary judgment on

Groisman’s claims for breach of fiduciary duty and aiding-and-abetting fraud.

The undisputed facts establish the following: Groisman is a real estate investor and citizen

of Argentina. In 2011, Groisman became interested in investing in the United States, so his Israel-

based real estate broker, Uriel Yeret, suggested that he contact third-party defendant Moshe Feler,

also known as Feller, whom Yeret described as a successful real estate investor. Groisman and

Feler spoke by telephone and eventually settled on two potential investments in the United States:

one in Queens, and one in Brooklyn. In September 2011, although Groisman and Feler had not

yet decided between the two opportunities, Groisman wired $3 million at Feler’s direction to an

attorney escrow account under the name “Carl N. Caller – Attorney Escrow Account.” App’x

456–57, 693–94. Concurrently with the wiring instructions, Feler informed Groisman that Jeffrey

Zwick was the attorney “working on this deal.” See id. at 456 (referring to an attorney named

“Yitzchok Zwick,” which the parties agree refers to Jeffrey Zwick). At the time, Zwick, a real

estate attorney, was working at the Law Offices of N.C. Caller P.C., a co-defendant owned by Carl 2 N. Caller (together with N.C. Caller P.C., “N.C. Caller”), and had a longstanding relationship with

Feler. Groisman did not contact Zwick or anyone else at N.C. Caller before wiring the $3 million

into the escrow account, or afterwards to confirm that the funds had been received.

In November 2011, Feler told Groisman that he had decided not to go forward with the

Queens deal and offered to return Groisman’s money—an offer Groisman did not take. Then, on

December 29, 2011, Feler asked Groisman to review the details of a “new deal in [G]reenpoint

Brooklyn,” due to close on January 7, 2012. Groisman verbally authorized Feler to invest

Groisman’s funds in that deal in December 2011, and in January 2012, Feler told Groisman that

the Brooklyn deal had closed. Feler did not provide a contract of sale, closing statement, or any

other document to show that Groisman’s money had been invested in the way that Feler had

represented—and Groisman did not ask for any such document. Nor did Groisman contact Zwick

regarding the supposedly closed transaction.

Unbeknownst to Groisman, there was no Brooklyn deal in which his money had been

invested. Instead, in August and September 2012, Feler directed Zwick to transfer the $3 million

to a different real estate investment in New Jersey. Two days before the bulk of the $3 million

was transferred, Feler told Zwick for the first time that Groisman specifically provided the funds.

Feler supplied Zwick with an operating agreement reflecting Groisman’s supposed agreement to

invest in an entity that would have a derivative interest in the New Jersey deal. The operating

agreement had what purports to be Groisman’s signature but, unbeknownst to Zwick, the signature

was a forgery.

In July or August 2014, Yeret told Groisman that Groisman’s funds had not been used in

the Brooklyn transaction and had instead been used to fund the New Jersey project. Groisman

enlisted an acquaintance to confront Zwick, who explained that Feler had presented him with an 3 operating agreement authorizing the use of the funds for the New Jersey deal. Zwick

subsequently contacted Feler, who promised to provide documents showing that Groisman knew

about the transaction. Feler never provided the documents. Groisman was eventually able to sell

his interest in the New Jersey investment, recovering approximately “a million eighty.” App’x at

245, 700.

Groisman eventually sued, asserting claims under New York law against Feler, N.C. Caller,

Zwick, and several John Does. The district court dismissed on the pleadings all claims against

N.C. Caller, and all claims against Zwick except those alleging malpractice, breach of fiduciary

duty, and aiding and abetting Feler’s fraud. After discovery, the district court granted summary

judgment to Zwick on the remaining claims. The district court held that (1) Groisman had

abandoned his legal malpractice claim; (2) the fiduciary duty claim failed because Zwick did not

owe Groisman a fiduciary duty; (3) even assuming a claim for breach of fiduciary duty existed, it

was time barred; and (4) the aiding-and-abetting claim failed because Groisman had not presented

sufficient evidence to permit a reasonable jury to find that Zwick knew that Feler was engaged in

fraud.

Feler never appeared or filed a responsive pleading in this case. In an order accompanying

its decision on summary judgment, the district court directed Groisman to move for a default

judgment against Feler. However, Groisman never did so (nor did he respond to the district

court’s order to show cause as to why the case should not be dismissed). Accordingly, the district

court dismissed the case against Feler for failure to prosecute.

Groisman timely appealed the district court’s grant of Zwick’s motion for summary

judgment.

4 I. Summary Judgment

“We review a district court’s decision to grant summary judgment de novo, construing the

evidence in the light most favorable to the party against which summary judgment was granted

and drawing all reasonable inferences in its favor.” McCutcheon v. Colgate-Palmolive Co., 62

F.4th 674, 686 (2d Cir. 2023). 1 Summary judgment must be granted “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

A. Breach of Fiduciary Duty Claim

Groisman first challenges the district court’s grant of summary judgment to Zwick on

Groisman’s breach of fiduciary duty claim. To recover for breach of fiduciary duty, a plaintiff

must prove “(1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and

(3) damages directly caused by the defendant’s misconduct.” Yukos Capital S.A.R.L. v. Feldman,

977 F.3d 216, 241 (2d Cir. 2020) (quoting United States Fire Ins. Co. v. Raia, 942 N.Y.S.2d 543,

545 (2d Dep’t 2012)). Fiduciary relationships do not require a contract and can instead be inferred

from the parties’ conduct “where it can be readily seen that one party reasonably trusted another.”

Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150–51 (2d Cir. 1993). However, courts will not

readily “infer and superimpose” a fiduciary relationship absent evidence that the parties “create[d]

their own relationship of higher trust.” Northeast General Corp. v. Wellington Advertising, Inc.,

82 N.Y.2d 158, 162 (1993). Instead, “special circumstances” are required to transform a

“business relationship into a fiduciary one.” Pauwels v. Deloitte LLP, 83 F.4th 171, 183 (2d Cir.

2023).

1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted. 5 While fiduciary duties can arise from an escrow agreement that is actually made between

a depositor and someone who agrees to be the depositor’s escrow agent, Gargano v. Morey, 86

N.Y.S.3d 595, 598–99 (2d Dep’t 2018), “the mere delivery of the instrument or property to an

escrowee does not constitute a transaction in escrow.” In re AppOnline.com, 315 B.R. 259, 274

(Bankr. E.D.N.Y. 2004) (quoting National Union Fire Ins. Co. Pittsburgh, Pa. v. Proskauer Rose

Goetz & Mendelsohn, 634 N.Y.S.2d 609, 614 (Sup. Ct. N.Y. County 1994), aff’d, 642 N.Y.S.2d

505 (1st Dep’t 1996)). Accordingly, the mere deposit of funds into an escrow account does not

create a fiduciary relationship (or an escrow agreement) between the depositor and the account

holder. See Shapiro v. Snow Becker Krauss P.C., 617 N.Y.S.2d 470, 470 (1st Dep’t 1994).

The district court held, and we agree, that, on the undisputed facts, Zwick did not owe

Groisman a fiduciary duty. At his deposition, Groisman admitted that he did not have an escrow

agreement with Zwick, nor any other “writing.” App’x at 132. Instead, Groisman argues that

Zwick’s receipt of his money into the N.C. Caller account gave rise to a fiduciary relationship,

particularly when Zwick “became aware that the funds were not Feller’s.” Appellant’s Br. at 18–

19. But Groisman concedes that he never spoke with Zwick (or anyone at N.C. Caller) at all

before Feler directed that Groisman’s money be transferred to the New Jersey transaction: not

when Groisman wired $3 million (without any instructions) to the escrow account; not after the

initial Queens deal fell through; and not when the Brooklyn deal was supposedly completed.

Indeed, Groisman allowed $3 million to sit in the escrow account for a year without contacting the

entity (N.C. Caller) to which he transferred the funds. Groisman testified that he did not feel a

need to provide any further details (or request assurances) regarding his funds because Feler and

Yeret told him that Zwick “was going to represent” him and that, “sending the funds to a lawyer’s

account[,] you can be relaxed.” App’x at 103–04. 6 Groisman’s one-sided belief does not a fiduciary relationship make, nor did his unilateral

deposit of funds into the escrow account. “Although [Groisman] may have reposed trust or

confidence in [Zwick] by transferring the money into the [N.C. Caller] account, this does not give

rise to a fiduciary duty because [Zwick] never accepted a relationship of trust or confidence with

respect to [Groisman].” Regions Bank v. Wieder & Mastroianni, P.C., 423 F. Supp. 2d 265, 270

(S.D.N.Y. 2006). When Feler told Zwick—his lawyer—that “the escrowed funds should be

wired” to fund the New Jersey transaction, Zwick “was obligated to comply.” Id. And, despite

Groisman’s speculative urging, there were “neither circumstances suggesting bad faith nor the

total absence of any apparent authority” that would have put Zwick “on notice of an irregularity

possibly triggering a duty to inquire,” assuming that Zwick could ever be subject to such a duty.

Shapiro v. McNeill, 92 N.Y.2d 91, 98–99 (1998).

In Shapiro, New York’s highest court affirmed the dismissal of a claim brought against the

defendant attorney by a nonclient plaintiff who wrote checks payable to the attorney (who

represented the fraudster’s accomplice) for a fraudulent real estate transaction. See id. at 94, 99.

The court found that the attorney owed the nonclient plaintiff no duty because (1) the plaintiff

“admittedly had no contact whatsoever, during the events leading up to this action,” with the

attorney; (2) there was concededly no escrow agreement between the plaintiff and the attorney;

(3) there was no irregularity triggering a duty to inquire, assuming the attorney would ever be

subject to such a duty; and (4) “despite the conceded absence of any relationship between

[plaintiff] and [the attorney], [plaintiff] made the checks payable to [the] attorney without

communicating to [the attorney] any instructions whatsoever.” See id. at 94–99. Thus, under

controlling New York law, Zwick did not breach any fiduciary duty when he wired Groisman’s

money to fund the New Jersey transaction. 7 To the extent that Groisman’s claim for breach of fiduciary duty is premised on his belief

that Zwick was acting as his lawyer, that argument also fails. “[O]ne party’s unilateral beliefs

and actions do not confer upon him or her the status of client.” Solondz v. Barash, 639 N.Y.S.2d

561, 564 (3d Dep’t 1996). Groisman also suggests that the rules of professional conduct imposed

on Zwick a fiduciary duty to Groisman. But “an ethical violation will not, in and of itself, create

a duty that gives rise to a cause of action that would otherwise not exist at law.” Shapiro, 92

N.Y.2d at 97.

B. Aiding-and-Abetting Fraud Claim

Groisman also challenges the district court’s grant of summary judgment for Zwick on

Groisman’s aiding-and-abetting fraud claim. “To establish liability for aiding and abetting fraud,

the plaintiff[] must show (1) the existence of a fraud; (2) the defendant’s knowledge of the fraud;

and (3) that the defendant provided substantial assistance to advance the fraud’s commission.”

Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006). Actual knowledge, not constructive

knowledge (meaning that someone should have known something), is required. Krys v. Pigott,

749 F.3d 117, 127 (2d Cir. 2014). “Because at trial a claim for aiding and abetting fraud must be

proven by clear and convincing evidence, to survive summary judgment, Plaintiffs must have

adduced sufficient evidence to meet this standard at trial.” Silvercreek Mgmt. Inc. v. Citigroup,

Inc., 346 F. Supp. 3d 473, 482 (S.D.N.Y. 2018). “[E]vidence that a defendant could or should

have been able to deduce the fact of an underlying fraud on the basis of red flags or warning signs

is not a substitute for actual knowledge.” Id. at 487.

We agree with the district court that Groisman has failed to offer sufficient evidence to

permit a reasonable jury to find that Zwick had actual knowledge of Feler’s fraud. Groisman’s

proof of fraud boils down to his assertion that “surrounding circumstances” “underscore[d] the 8 dubious nature” of the New Jersey deal and that such circumstances should have “shocked” Zwick

or “set off alarm bells.” Appellant’s Br. at 24–32. But none of the supposedly dubious

“surrounding circumstances” Groisman points to—such as the fact that Feler told Zwick that

Groisman was the source of the $3 million only two days before the New Jersey transaction closed,

or that the operating agreement with the forged signature was not countersigned by Feler—

constitute evidence of Zwick’s actual knowledge of Feler’s fraud. Such allegations do not create

a dispute of fact sufficient to survive summary judgment. Moreover, “a party may not rely on

mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary

judgment”—which is exactly what Groisman’s speculation about Zwick’s state of mind amounts

to. FTC v. Moses, 913 F.3d 297, 305 (2d Cir. 2019). Groisman’s aiding-and-abetting claim was

properly dismissed.

* * *

We have considered Groisman’s remaining arguments and find them unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk