Liberman v. Worden

• Decision Date: 20 January 2000
• Citation: 268 A.D.2d 337,701 N.Y.S.2d 419
• Court: New York Supreme Court — Appellate Division
• Parties: NORMAN J. LIBERMAN, Respondent-Appellant,<BR>v.<BR>WAYNE WORDEN et al., Defendants, MERRILL LYNCH PIERCE FENNER & SMITH, INC., et al., Respondents, and ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant-Respondent.

268 A.D.2d 337

701 N.Y.S.2d 419

NORMAN J. LIBERMAN, Respondent-Appellant,

v.WAYNE WORDEN et al., Defendants, MERRILL LYNCH PIERCE FENNER & SMITH, INC., et al., Respondents, and ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant-Respondent.

Decided January 20, 2000.

Concur — Rosenberger, J. P., Williams, Rubin, Andrias and Buckley, JJ.

The first and second causes of action against Chase were properly dismissed (see, Moore v Richmond Hill Sav. Bank, 117 AD2d 27, 32). The third cause of action is time-barred under 15 USC § 1693m (g) and the fourth cause of action is time-barred under UCC 4-406 (4). The fifth cause of action, which plaintiff treats as one for commercial bad faith, was properly dismissed because the allegations that the Chase employee committed notarial misconduct do not rise to the level of bad faith (see, Prudential-Bache Sec. v Citibank, 73 NY2d 263, 274).

The 6th, 7th, 11th, 12th and 24th causes of action for aiding and abetting defendant Worden's misconduct were properly dismissed in the absence of any allegation that defendants had actual or constructive knowledge of the misconduct and substantially assisted therein (see, DePinto v Ashley Scott, Inc., 222 AD2d 288, 290; H2O Swimwear v Lomas, 164 AD2d 804, 807). For these same reasons, the 23rd cause of action should have been dismissed as well.

Those branches of the eighth cause of action for conversion arising out of the March 14, 1991 and August 27, 1991 pre-death transactions do not receive the benefit of the toll contained in CPLR 210 (c) and are time-barred. The allegations in the amended complaint are insufficient to state a cause of action for a breach of bailment to revive these claims (see, Coons v First Natl. Bank, 218 App Div 283, 284). As to the December 15 post-death transaction, the facts alleged are not sufficient to state a conversion claim (see, Hartford Acc. & Indem. Co. v Walston & Co., 21 NY2d 219, 221).

The 9th cause of action was properly dismissed since defendant Worden's subsequent misappropriation of the properly deposited funds, and not the conduct of the Merrill defendants, was the proximate cause of decedent's loss (see, Geotel, Inc. v Wallace, 162 AD2d 166, 168, lv denied 76 NY2d 917).

The court properly dismissed the 10th cause of action for breach of fiduciary duty because the brokerage account upon which the fiduciary relation was allegedly predicated was a standard, nondiscretionary account (see, Perl v Smith Barney, 230 AD2d 664, 666, lv denied ...