Celle v. Barclays Bank P.L.C.
Full Opinion (html_with_citations)
The court properly dismissed the complaint in this action where plaintiff, the holder of three nondiscretionary accounts, which were maintained by Barclays Private Bank and transferred to Royal Bank of Canada Global Private Banking (RBC), asserted causes of action for, inter alia, breach of contract, breach of fiduciary duty, fraud and promissory estoppel, based on allegations that defendants mishandled the accounts. Plaintiffs allegation that oral instructions were disregarded is not actionable inasmuch as the subject agreement provides that communications must be in writing in order to be effective (see Pane v Citibank, N.A., 19 AD3d 278 [2005]), and the complaint did not support an inference that written instructions were ignored. Moreover, plaintiff, a sophisticated investor, failed to establish that defendantsâ acts or omissions proximately caused a loss of equity in the accounts, liability for which loss was specifically disclaimed in the agreement.
The breach of fiduciary duty claim was properly dismissed as the agreement ââcover[s] the precise subject matter of the alleged fiduciary dutyâ (id. at 279). Indeed, brokers for nondiscretionary accounts do not owe clients a fiduciary duty (see Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268 [2003]), and the claim is also duplicative of the breach of contract cause of action.
The fraud claim is also duplicative of the breach of contract claim (see River Glen Assoc. v Merrill Lynch Credit Corp., 295 AD2d 274, 275 [2002]), and, in any event, plaintiff failed to allege that defendants knowingly made a false representation that he reasonably relied on to his detriment. The expressed anticipation that the transfer of the accounts to RBC would
In the absence of a duty independent of the agreement, the promissory estoppel claim was duplicative of the breach of contract claim (see Brown v Brown, 12 AD3d 176 [2004]). Furthermore, the promises were contingent on Barclaysâ staff accepting positions with RBC and merely indicated a hope that the transition would go well, and plaintiffs reliance was not reasonable given his awareness of the difficulty in communicating with his Barclaysâ representatives (see Knight Sec. v Fiduciary Trust Co., 5 AD3d 172, 175 [2004]).
We have considered plaintiffs remaining arguments and find them unavailing. ConcurâMazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.