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

• Decision Date: 31 March 2016
• Parties: CITIBANK, N.A., et al., Plaintiffs–Appellants, v. KEENAN POWERS & ANDREWS PC, et al., Defendants, Securetitle Agency, Inc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 715

27 N.Y.S.3d 385 (Mem)

CITIBANK, N.A., et al., Plaintiffs–Appellants,

v.KEENAN POWERS & ANDREWS PC, et al., Defendants,Securetitle Agency, Inc., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

March 31, 2016.

Bryan Cave LLP, New York (Courtney J. Peterson of counsel), for appellants.

David H. Eisenberg, Smithtown, for respondent.

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 N.Y. Slip Op. 32325[U], 2007 WL 2815454 [Sup.Ct., N.Y. County 2007]

; see also Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 [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 A.D.3d 546, 547, 903 N.Y.S.2d 368 [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 A.D.3d 341, 851 N.Y.S.2d 539 [1st Dept.2008] ).

TOM

, J.P., SWEENY, MANZANET–DANIELS, GISCHE, GESMER, JJ., concur.