very terms of the agreements permit Bankers Trust to take these actions. See Sazerac Co. v. Falk, 861 F. Supp. 253, 257 (S.D.N.Y. 1994) (conclusory allegations in direct conflict with governing documents do not state a claim). VOC does not dispute that its failure to pay the loan at maturity was an Event of Default as defined in the Loan Agreement. (Compl. Ex. 1, P 8.1(a)(i).) Under the terms of the Loan Agreement, the Promissory Note, and the Guaranties, Bankers Trust's obligation to disburse funds from the collateral accounts was conditioned expressly on there being no Event of Default, and in such an event, Bankers Trust became entitled to apply funds from the collateral accounts to the loan in its sole and absolute discretion. (Compl. Ex. 1, P 4.2(ii), Ex. 2, P 13, Ex. 3, P 13; Eizenman Aff. Ex. B. P 17.) This is precisely what VOC alleges occurred.
Accordingly, because the acts about which VOC complains were taken pursuant to, rather than in breach of, the unambiguous terms of its agreements with Bankers Trust, Count IV fails to state of claim for breach of contract and that claim is dismissed.
The next three claims are premised on various alleged misrepresentations and omissions by Bankers Trust. Count V asserts a claim for fraudulent nondisclosure in that Bankers Trust allegedly failed to inform VOC that an extension of the loan was subject to the approval of participants. (Compl. PP 21, 30, 36, 67.) Count VI asserts a claim based on intentional misrepresentation, alleging that Bankers Trust fraudulently misrepresented that it would extend the loan and would act as VOC's exclusive marketing agent for the project. (Compl. PP 75-77.) Count VII pleads a claim for negligent misrepresentation with respect to the same alleged oral representations that are pleaded in Count VI. (See Compl. P 84-87.) These three claims each fail because VOC has not pleaded the element of reasonable reliance.
Under New York law, reasonable reliance is an essential element of a claim for fraud. See Keywell Corp. v. Weinstein, 33 F.3d 159, 163 (2d Cir. 1994) (setting forth elements of fraud in New York); Albert Apartment Corp. v. Corbo Co., 182 A.D.2d 500, 500, 582 N.Y.S.2d 409, 410 (1st Dep't 1992) (same), lv. to appeal dismissed, 80 N.Y.2d 924, 589 N.Y.S.2d 311, 602 N.E.2d 1127 (1992) (table); Megaris Furs, Inc. v. Gimbel Bros., Inc., 172 A.D.2d 209, 212-13, 568 N.Y.S.2d 581, 584-85 (1st Dep't 1991) (reliance requires cause-and-effect relationship). Reliance is also required in the case of fraudulent concealment. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 152 (2d Cir. 1993); Ziring v. Corrugated Container Corp., 183 Misc. 600, 604, 49 N.Y.S.2d 686, 691 (N.Y. Sup. Ct. Kings Co. 1944) ("where redress is sought for fraudulent concealment, it must appear that plaintiff relied on defendant to make disclosure of the fact concealed and that the concealment was a moving inducement to plaintiff's change of position"). It is also a required element of a claim for negligent misrepresentation. See Pappas v. Harrow Stores, Inc., 140 A.D.2d 501, 504, 528 N.Y.S.2d 404, 407 (2d Dep't 1988) ("In order to recover on a theory of negligent misrepresentation, a plaintiff must establish that, because of some special relationship with the defendant which generally implies a closer degree of trust than the ordinary buyer-seller relationship, the law imposes on that defendant a duty to use reasonable care to impart correct information, that the information is false or incorrect, and that the plaintiff reasonably relied upon the information given . . . ."). Here, the plaintiffs have not adequately pleaded reasonable reliance for any of the three claims.
The allegations that Bankers Trust fraudulently concealed from VOC the fact that the loan participants' consent would be required for an extension, and that Bankers Trust misrepresented that it would not obtain loan participants in a way that would yield authority for granting an extension are flatly contradicted by the terms of the Loan Agreement, (see Compl. Ex. 1, 9.4(c)), and the terms of the August 31, 1990 letter. (See Compl. Ex. 6.) The Loan Agreement expressly provides that Bankers Trust had the right to sell participation interests in the loan at any time, and that the participants' consent could be required for any extension of the maturity of the loan. (Compl. Ex. 1, PP 9.4(c)(ii), 9.4(c)(b)(III).) Moreover, as set forth in the Loan Agreement, VOC agreed that sale of participation interests would give rise to VOC's direct obligation to the holder of such an interest, and that such a holder would be considered to be a "Lender" within the meaning of that term under the Loan Agreement. (Compl. Ex. 1, P 9.4(c)(b)(IV).) VOC's allegations are flatly contradicted by these express terms of the Loan Agreement. Because VOC is presumed to have read this unambiguous document, it cannot now argue that it relied on Bankers Trust's alleged failure to disclose the document's terms or Bankers Trust's alleged oral representations to the contrary. See Bank Leumi v. D'Evori Int'l, Inc., 163 A.D.2d 26, 32, 558 N.Y.S.2d 909, 915 (1st Dep't 1990) ("Reliance is an essential element of [a fraud] claim or defense, and given the unambiguous terms of the loan agreement . . . any such reliance would not be justified. . . . The loan agreement expressly precludes reliance on any oral agreement to modify its terms."); Humble Oil & Ref. Co. v. Jaybert Esso Serv. Sta., Inc., 30 A.D.2d 952, , 294 N.Y.S.2d 190, 192 (1st Dep't 1968) ("Since the written instrument contains terms different from those allegedly orally represented, and [defendant] is presumed to have read the writing, he may not claim he relied on the representations.").
The remaining allegedly fraudulent misrepresentation is that Bankers Trust represented its intent to act as VOC's exclusive marketing agent when it did not intend to do so. This allegation is nothing more than a claim that Bankers Trust did not intend to comply with the express terms of the Financial Advisor Agreement. The mere allegation that a party to a contract did not intend to perform an express contractual promise does not state a claim for fraud under New York law. See, e.g., PI, Inc. v. Quality Prods., Inc., 907 F. Supp. 752, 761-62 (S.D.N.Y. 1995) (collecting New York cases); Caniglia v. Chicago Tribune-New York News Syndicate, Inc., 204 A.D.2d 233, , 612 N.Y.S.2d 146, 147 (1st Dep't 1994) (a cause of action does not lie where "the only fraud alleged merely relates to the contracting party's alleged intent to breach a contractual obligation").
The claim for negligent misrepresentation also fails to state a claim on the independent ground that there is no special relationship between the parties. Under New York law, there is no action for negligent misrepresentation of a promise of future conduct unless there is a special relationship between the parties. See American Protein Corp. v. AB Volvo, 844 F.2d 56, 63-64 (2d Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 109, 109 S. Ct. 136 (1988); Durante Bros. & Sons, Inc. v. Flushing Nat'l Bank, 755 F.2d 239, 252-53 (2d Cir.), cert. denied, 473 U.S. 906, 87 L. Ed. 2d 654, 105 S. Ct. 3530 (1985); Frutico, S.A. de C.V. v. Bankers Trust Co., 833 F. Supp. 288, 300 (S.D.N.Y. 1993), aff'd, 23 F.3d 396 (2d Cir. 1994); Banque Arabe v. Maryland Nat'l Bank, 819 F. Supp. 1282, 1293 (S.D.N.Y. 1993) ("Under New York law, there is no cause of action for negligent misrepresentation 'in the absence of a special relationship of trust and confidence between the parties.'"), aff'd, 57 F.3d 146 (2d Cir. 1995); U.S. West Fin. Servs., Inc. v. Tollman, 786 F. Supp. 333, 344 (S.D.N.Y. 1992) (citing Murray v. Xerox Corp., 811 F.2d 118, 123 (2d Cir. 1987)).
The plaintiffs allege that the parties are in such a special relationship by virtue of the long-standing financial advisory relationship between Goldberg and Bankers Trust and the agency agreement between VOC and Bankers Trust. As explained in the next section of this Opinion, the Financial Advisor Agreement between VOC and Bankers Trust does not create a fiduciary relationship. It is merely an arms-length, contractual arrangement for Bankers Trust to locate potential investors and bring them together with the plaintiffs. Neither do the loan and guaranty documents themselves give rise to a special relationship sufficient to sustain an action for negligent misrepresentation. As New York courts routinely explain, "there is no fiduciary duty or privity of contract arising out of the contractual arms-length debtor and creditor legal relationship between a borrower and a bank which would give rise to a cause of action for negligent misrepresentation." Banque Nationale de Paris v. 1567 Broadway Ownership Assocs., 214 A.D.2d 359, , 625 N.Y.S.2d 152, 154 (1st Dep't 1995); see Chester Color Separations, Inc. v. Trefoil Capital Corp., A.D.2d , , 636 N.Y.S.2d 613, 614 (1st Dep't 1995); Marine Midland Bank, N.A. v. Hallman's Budget Rent-a-Car of Rochester, Inc., 204 A.D.2d 1007, 1008, 613 N.Y.S.2d 92, 92 (4th Dep't 1994). Similarly, to the extent that Geminus and Goldberg assert the claim as guarantors, Bankers Trust owed no special duty to them either. See Bank Leumi Trust Co. of New York v. Block 3102 Corp., 180 A.D.2d 588, 589, 580 N.Y.S.2d 299, 300 (1st Dep't), lv. to appeal denied, 80 N.Y.2d 754, 587 N.Y.S.2d 906 (1992) (table). Accordingly, in addition to their failure to plead reasonable reliance, the plaintiffs also fail to state a claim for negligent misrepresentation because of the lack of special relationship between the parties. The claim for negligent misrepresentation is dismissed on that independent basis as well.
In Count VIII plaintiffs allege a claim for breach of fiduciary duty, arguing that a fiduciary relationship existed between VOC and Bankers Trust by virtue of the Financial Advisor Agreement and between the two guarantors and Bankers Trust by virtue of their prior banking relationship. (Compl. PP 92-93.) The plaintiffs allege that Bankers Trust breached these fiduciary duties by "lulling plaintiffs into believing that an extension would be granted in order to encourage additional secured debt," by failing to disclose that Bankers Trust would not have exclusive control over the approval of any extension, by failing to place VOC's long-term financing, and by otherwise taking advantage of the plaintiffs in unspecified ways. (Compl. PP 94 (a)-(d).) Bankers Trust argues that no fiduciary relationship existed between it and any of the plaintiffs.
Bankers Trust is correct. With respect to Goldberg and Geminus, under New York law no fiduciary relationship arises from a long-standing debtor-creditor or creditor-guarantor relationship as alleged in the Complaint. See Banque Nationale, A.D.2d at , 625 N.Y.S.2d at 153; Marine Midland, 204 A.D.2d at 1008, 613 N.Y.S.2d at 92; Bank Leumi, 180 A.D.2d at 589, 580 N.Y.S.2d at 301 ("The legal relationship between a borrower and a bank is a contractual one of debtor and creditor and does not create a fiduciary relationship between the bank and its borrower or its guarantors."), appeal denied, 80 N.Y.2d 754, 587 N.Y.S.2d 906 (1992); see also Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 122 (2d Cir. 1984) (long standing correspondent banking relationship insufficient to create fiduciary relationship); Compania Sud-Americana v. IBJ Schroder Bank & Trust Co., 785 F. Supp. 411, 426 (S.D.N.Y. 1992) (fifty-year conventional business relationship did not create fiduciary duty). In this case the plaintiffs do not allege that Bankers Trust's relationship to Goldberg and Geminus, as long and as mutually profitable as it may have been, was anything beyond that exemplified by the Loan Agreement and Guaranties--that of creditor and guarantors. Because such a relationship does not create a fiduciary duty between the parties under New York law, there can be no claim against Bankers Trust for breach of fiduciary duty.
The Financial Advisor Agreement is not a basis for a fiduciary relationship either. It is true that an exclusive agency gives rise to a fiduciary duty between principal and agent under New York law. See L.F. Rothschild & Co. Inc. v. A.F. Holding, Inc., No. 87 Civ. 5134, 1990 U.S. Dist. LEXIS 3393, *13, 1990 WL 37856, at *5 (S.D.N.Y. Mar. 28, 1990); Interactive Props. Inc. v. Doyle Dane Bernbach, Inc., 125 A.D.2d 265, 272, 509 N.Y.S.2d 806, 811 (1st Dep't 1986), appeal denied, 70 N.Y.2d 613, 524 N.Y.S.2d 431 (1987). VOC argues that Bankers Trust was subject to such a duty as VOC's exclusive marketing agent under the Financial Advisor Agreement. The terms of the agreement, however, make clear that Bankers Trust was not VOC's agent but rather was VOC's finder.
Bankers Trust's obligations under the agreement were limited to "approaching domestic and foreign financial institutions and other qualified investors," (Compl. Ex. 4, P 1), and to "assessing the interest of the Investors in Purchasing or providing Financing and  obtaining proposals[s] from them . . . ." (Compl. Ex. 4., P 2.) Bankers Trust had no authority to commit VOC to any proposal or to negotiate on VOC's behalf, as the terms of the agreement make clear. (Compl. Ex. 4, P 1.) Bankers Trust could only evaluate the proposals and make recommendations. (Compl. Ex. 4, P 6.) For these services Bankers Trust would earn a fee based on a percentage of the value of a deal struck with the investor. (Compl. Ex. 4, PP 7-8.) In other words, rather than acting as a broker, Bankers Trust's role under the Financial Advisor Agreement was to find interested investors and direct them to VOC, for which Bankers Trust would earn a finder's fee. This arrangement is not the kind of "exclusive agency" that imposes a fiduciary duty under New York law. As the New York Court of Appeals has explained:
[A] finder is not a broker, although they perform some related functions. Distinguishing between a broker and finder involves an evaluation of the quality and quantity of services rendered. The finder is required to introduce and bring the parties together, without any obligation or power to negotiate the transaction, in order to earn the finder's fee.
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