W.S.A., Inc. v. Key Trust Co.

195 A.D.2d 1034, 600 N.Y.S.2d 525

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1993
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly dismissed plaintiff’s complaint against defendant Key Trust Company (defendant). Plaintiff’s cause of action alleging breach of trust fails because an essential element of a valid trust, the intent to pass legal title of the trust fund to defendant, was absent; rather, pursuant to the express terms of the custodian and trust agreements, defendant was to serve as custodian of the trust fund (see, Matter of Ihmsen, 253 App Div 472; see generally, Brown v Spohr, 180 NY 201, 209; Matter of Frank, 52 AD2d 335, 338). Plaintiff’s negligent misrepresentation causes of action were properly dismissed because essential elements of such a cause of action, i.e., privity of contract or a relationship "so close as to approach that of privity” (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424), and reasonable reliance on information imparted by defendant (Bower v Atlis Sys., 182 AD2d 951, 953, lv denied 80 NY2d 758), were absent. Plaintiffs breach of contract cause of action also was properly dismissed. It is undisputed that defendant attempted to obtain adequate funding once it discovered that the bond submitted by plaintiff was inadequate; plaintiff cites no authority requiring defendant itself to provide adequate funding. (Appeal from Order of Supreme Court, Erie County, Fallon, J. —Summary Judgment.) Present—Denman, P. J., Pine, Law-ton, Boomer and Davis, JJ.