Katt v. Markov

Appellate Division of the Supreme Court of New York

Katt v. Markov

121 A.D.3d 542, 993 N.Y.S.2d 891

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 2014

Docket13264 651699/12

StatusPublished

This text of 121 A.D.3d 542 (Katt v. Markov) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Katt v. Markov, 121 A.D.3d 542, 993 N.Y.S.2d 891 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 3, 2013, which, after a nonjury trial, directed that judgment be entered in favor of defendant, unanimously affirmed, with costs.

By entering into an agreement for the purchase of plaintiffs goods by defendant, the parties terminated their fiduciary relationship of auctioneer and consignor (Dubbs v Stribling & Assoc., 274 AD2d 32 [1st Dept 2000], affd 96 NY2d 337 [2001]). Thus, plaintiff’s agreement not to sue defendant in exchange for $100,000, which he acknowledged was paid, was correctly analyzed as a transaction at arm’s length. Moreover, as a fiduciary, defendant could have obtained a release (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 278-279 [2011]). Even if defendant were found to be a fiduciary, plaintiffs constructive fraud claim would fail for lack of evidence that the stated risks of auction (nonpayment, challenges to the bona fides of the sale items) were not true risks (see generally Brown v Lockwood, 76 AD2d 721, 733 [2d Dept 1980]).

Concur — Tom, J.E, Renwick, Moskowitz, Richter and Kapnick, JJ.

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Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 3, 2013, which, after a nonjury trial, directed that judgment be entered in favor of defendant, unanimously affirmed, with costs.

By entering into an agreement for the purchase of plaintiffs goods by defendant, the parties terminated their fiduciary relationship of auctioneer and consignor (Dubbs v Stribling & Assoc., 274 AD2d 32 [1st Dept 2000], affd 96 NY2d 337 [2001]). Thus, plaintiff’s agreement not to sue defendant in exchange for $100,000, which he acknowledged was paid, was correctly analyzed as a transaction at arm’s length. Moreover, as a fiduciary, defendant could have obtained a release (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 278-279 [2011]). Even if defendant were found to be a fiduciary, plaintiffs constructive fraud claim would fail for lack of evidence that the stated risks of auction (nonpayment, challenges to the bona fides of the sale items) were not true risks (see generally Brown v Lockwood, 76 AD2d 721, 733 [2d Dept 1980]).

Concur — Tom, J.E, Renwick, Moskowitz, Richter and Kapnick, JJ.

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Bluebook (online)

121 A.D.3d 542, 993 N.Y.S.2d 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katt-v-markov-nyappdiv-2014.

Opinion

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