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

Citibank, N.A. v Keenan Powers & Andrews PC 2016 NY Slip Op 02541 Decided on March 31, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 31, 2016
Tom, J.P., Sweeny, Manzanet-Daniels, Gische, Gesmer, JJ.
692 651075/12

[*1]Citibank, N.A., et al., Plaintiffs-Appellants,

v

Keenan Powers & Andrews PC, et al., Defendants, Securetitle Agency, Inc., Defendant-Respondent.

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 NY Slip Op 32325[U] [Sup Ct, NY County 2007); see also Kaufman v Cohen, 307 AD2d 113, 125 [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 AD3d 546, 547 [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 AD3d 341 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2016

CLERK