East of Hudson Rail Frgt. Task Force, Inc. v Port Auth. of N.Y. & N.J.

East of Hudson Rail Frgt. Task Force, Inc. v Port Auth. of N.Y. & N.J. 2020 NY Slip Op 02870 Decided on May 14, 2020 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 May 14, 2020
Richter, J.P., Oing, Singh, Moulton, JJ.
11506 654271/16

[*1] East of Hudson Rail Freight Task Force, Inc., Plaintiff-Appellant,

v

Port Authority of New York and New Jersey, Defendant-Respondent.

Law Office of John McHugh, New York (John F. McHugh of counsel), for appellant.

Port Authority Law Department, New York (Allen F. Acosta of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered November 30, 2018, which, insofar appealed from as limited by the briefs, granted defendant's motion to dismiss the first cause of action (breach of fiduciary duty) pursuant to CPLR 3211, unanimously affirmed, without costs.

The motion court properly found, as a matter of law, that defendant did not owe a fiduciary duty to plaintiff. Defendant never held funds belonging to plaintiff; rather, it was supposed to enter into a contract with plaintiff so that plaintiff could submit bills to defendant. This does not create a fiduciary relationship (see Waldman v Englishtown Sportswear, 92 AD2d 833, 836 [1st Dept 1983]).

Since plaintiff does not have a valid claim, it is unnecessary to consider whether it accrued within one year before the instant action was commenced, as required by Unconsolidated Laws § 7107, or whether defendant is estopped from enforcing the requirements of that statute.

We have considered plaintiff's argument that defendant's motion was premature because discovery was incomplete, and find it unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2020

CLERK