Lastly, the Centers contend that the disclaimer clause only disclaims IIE's fiduciary duty with respect to fund mismanagement by the trustees, i.e., TIAA/CREF, MONY, Generali and Alliance Retirement Plans. This reading of Section 2.1(c) is unreasonably narrow.
In addition to the unambiguous disclaimer clause in the Agreements, the existence of a fiduciary duty is not supported by the nature of the parties' relationship. "Before courts can infer and superimpose a duty of the finest loyalty, the contract and the relationship of the parties must be plumbed." Northeast General Corp. v. Wellington Advertising, Inc., 82 N.Y.2d 158, 162, 604 N.Y.S.2d 1, 3, 624 N.E.2d 129, 131 (1993). In this case, the relationship between the Centers and IIE, embodied in the Cooperation Agreements, is one between a service provider and its client, and is not fiduciary in nature.
Under New York law, "where parties deal at arm's length in a commercial transaction, no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances." National Westminster Bank, U.S.A. v. Ross, 130 Bankr. 656, 678 (S.D.N.Y. 1991), aff'd, 962 F.2d 1 (2d Cir. 1992) (applying New York law); see also Beneficial Comm'l Corp. v. Murray Glick Datsun, Inc., 601 F. Supp. 770, 772 (S.D.N.Y. 1985) (applying New York law). The two parties to this action are sophisticated entities who dealt at arm's length, and the Centers have not demonstrated the extraordinary circumstances necessary to a relation of confidence or trust such that a fiduciary relationship can be held to exist between the parties.
In sum, no question of fact remains as to whether IIE owed a fiduciary duty to the Centers. Therefore, IIE's motion for summary judgment on the Centers' claim of breach of fiduciary duty will be granted and the Centers' motion for summary judgment on this matter will be denied.
III. The Centers' Claim for Malpractice Cannot Be Maintained
The Centers claim that because IIE held itself out as a professional plan administrator, the Centers may maintain a malpractice claim against the Centers under New York law. New York law on the scope of professionals appropriately held liable for malpractice is rather limited, and no case specifically addresses the question whether an entity such as IIE is a professional against whom a malpractice claim may lie.
"Malpractice means the negligence of a member of a profession in his relations with his client or patient." Cubito v. Kreisberg, 69 A.D.2d 738, 419 N.Y.S.2d 578, 580 (N.Y. App. Div. 1979), aff'd, 51 N.Y.2d 900, 434 N.Y.S.2d 991, 415 N.E.2d 979 (N.Y. 1980); see also Newsom v. Republic Financial Services, Inc., 130 Misc. 2d 780, 497 N.Y.S.2d 830, 833 (N.Y. Sup. Ct. 1985) (essential elements of malpractice cause of action found lacking where defendants were not professionals and thus not in a professional relationship with plaintiff); Donohue v. Martin, 97 Misc. 2d 973, 413 N.Y.S.2d 99, 100 (N.Y. Sup. Ct. 1979) ("a member of any of the professions can be guilty of malpractice").
The Court of Appeals has held that the term "professional" implies knowledge of an advanced type in a given field of science or learning gained by a prolonged course of specialized instruction and study. People ex rel. Tower v. State Tax Commission, 282 N.Y. 407, 26 N.E.2d 955 (N.Y. 1940). In Frye v. Commissioner of Finance of the City of New York, et al., 95 A.D.2d 274, 466 N.Y.S.2d 3, 6 (N.Y. App. Div. 1983), the court outlined the following test as to whether a service is a profession:
In determining what activity constitutes the practice of a profession, consideration should be given to the following factors: (1) a long-term educational background generally associated with a degree in an advanced field of science or learning; (2) the requirement of a license which indicates sufficient qualifications have been met prior to engaging in the occupation; (3) the control of the occupation by standards of conduct, ethics and malpractice liability; and (4) the barrier to carrying on the occupation as a corporation.