August 28, 2013
Iain Curtis-Shanley, appellant,
Bank of America, respondent. Index No. 54017/11
Iain Curtis-Shanley, Hastings-on-Hudson, N.Y., appellant pro se.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Kristen D. Romano and Constantine Despotakis of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, THOMAS A. DICKERSON, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Scheinkman, J.), dated April 9, 2012, which denied his motion to compel the defendant to execute a certificate of readiness for trial, and (2) an order of the same court (Colabella, J.), dated April 11, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the orders are affirmed, with one bill of costs.
The plaintiff alleged several causes of action stemming from the defendant's denial of his application for a letter of credit to effect the purchase of rice from a seller in India. The Supreme Court denied the plaintiff's motion to compel the defendant to execute a certificate of readiness for trial and granted the defendant's motion for summary judgment dismissing the complaint.
The defendant established its prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
In general, the relationship between a bank and its customer is not a fiduciary one, but rather one of creditor and debtor (see Baumann v Hanover Community Bank, 100 A.D.3d 814, 817; Call v Ellenville Natl. Bank, 5 A.D.3d 521, 523; Nathan v J & I Enters., 212 A.D.2d 677, 677). Here, the Supreme Court properly awarded summary judgment dismissing the causes of action alleging breach of contract and breach of fiduciary duty since the plaintiff failed to establish the existence of an agreement, and the plaintiff's argument that his status as a depositor created a fiduciary duty is unsupported by law (see Nathan v J & I Enters., 212 A.D.2d at 677).
In addition, the plaintiff could not recover damages for negligent infliction of emotional distress because " absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty'" (Rakylar v Washington Mut. Bank, 51 A.D.3d 995, 996, quoting Wehringer v Standard Sec. Life Ins. Co. of N.Y., 57 N.Y.2d 757, 759; see Bettan v Geico Gen. Ins. Co., 296 A.D.2d 469, 470). Moreover, the conduct complained of was not " so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency'" so as to support his claim for intentional infliction of emotional distress (Baumann v Hanover Community Bank, 100 A.D.3d 814, 816-817, quoting Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 22-23).
Furthermore, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging fraud. To establish fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance, and injury (see Lama Holding Co. v Smith Barney, 88 N.Y.2d 413, 421; New York Univ. v Continental Ins. Co., 87 N.Y.2d 308, 318; Channel Master Corp. v Aluminium Ltd. Sales, 4 N.Y.2d 403, 406-407). Here, the defendant submitted evidence demonstrating that it made no material misrepresentation or omission and, in response, the plaintiff failed to raise a triable issue of fact (see Zinnanti v 513 Woodward Ave. Realty, LLC, 105 A.D.3d 736).
The plaintiff's remaining contentions are without merit or improperly raised for the first time on appeal.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.