In legal malpractice cases it is presumed, generally conclusively, that an attorney is a fiduciary of the client. That principle probably derives from the education and licensing of the attorney. It can be true in many other relationships, as Milonakis v Haralampopoulos 2017 NY Slip Op 30863(U) April 26, 2017 Supreme Court, New York County Docket Number: 653928/14
Judge: Barry Ostrager shows us.
“Presently before the Court is a post-note of issue motion by defendants Lambrini Haralampopoulos (“Lambrini”), J.P. Morgan Securities LLC, and JP Morgan Chase Bank, N.A (collectively, “defendants”) for an order pursuant to CPLR § 3212, granting them summary judgment dis~issing all remaining claims against all defendants. Plaintiff Ioannis Milonakis (“Milonakis”) asserted ten causes of action in his Verified Complaint, most of which were dismissed on the record on January 7, 2016 in connection with the defendants’ pre-answer motion to dismiss (motion sequence. 001 ). The third cause of action sounding in breach of fiduciary duty survived, pending further development of the record through discovery, and is the sole focus of this summary judgment motion. The motion is denied for the following reasons. 1 Plaintiff started banking at a particular Chase Bank branch in Astoria, Queens in 2002 (see Milonakis Deposition dated June 1, 2016 at 33:15-20, 42:7-14)2. Defendant ~ambrini, a Chase employee at this particular branch, performed various banking services for plaintiff, such as cashing rent checks from Milonakis’s rental property (id.), and, being a native Greek speaker like plaintiff, Lambrini occasionally translated certain conversations with other bank representatives for plaintiff during the course of their 10-year business relationship at the branch (see Milonakis Dep. 36: 19-25, 40:3-4, 34, 45- 47). In 2002, shortly after plaintiff retired from his union job, Larribrini introduced plaintiff to a colleague at Chase to discuss the purchase of an annuity with plaintiff’s retirement funds of roughly $500,000 (Milonakis Dep. 35:15-36-21). Lambrini translated during that conversation (id.). Plaintiff purchased an annuity (“Annuity”) issued by Genworth Financial (“Genworth”) which was marketed by a Chase affiliate (see Weiss Aff., Exh. 39). Lambrini is a licensed insurance representative and holds Series 6 and Series 63 licenses with the ability to transmit insurance forms (Lambrini Dep. 70:24-71 :5). ”
“Plaintiff commenced this action in December 2014 alleging, inter alia, that Lambrini never explained the withdrawal form to him, or the consequences of the withdrawal and surrender of the Annuity, when Lambrini knew that plaintiff did not speak English. Plaintiff further alleged that he had relied on Lambrini’ s “investment advice” when Lambrini told plaintiff in June 2012 that “it was proper to transfer the annuity funds” to a new Chase account, allegedly as part of a scheme by Lambrini to earn commissions at the expense of Greek Chase customers in the community (Milonakis Aff. at 3). Plaintiff claims he had a special relationship with Lambrini that rises to the level of a fiduciary duty and that Lambrini breached her fiduciary duty to him. To establish a common law tort for breach of fiduciary duty, plaintiff must prove (1) the existence of a fiduciary relationship; (2) misconduct by the defendants; and (3) damages directly caused by the defendants’ misconduct. Pokoik v Pokoik, 115 AD3d 428, 429 (1st Dept 2014), citing Kurtzman v Bergstol, 40 AD3d 588, 590 (2d Dept 2007). A fiduciary relationship is “grounded in a higher level of trust than normally present in the marketplace between those involved in arm’s length business transactions.” Oddo Asset Management v Barclays Bank.PLC, 19 NY3d 584, 593 (2012), citingEBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 (2005). The Court of Appeals has held that a fiduciary duty exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship. Roni LLC v Ar/a, 18 NY3d 846, 848 · (2011). Additionally, a fiduciary relationship may exist where one party reposes confidence in another and reasonably relies on the other’s superior expertise or knowledge. Id, quoting AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11 NY3d 146, 158 (2008) (“A fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other”). Defendants cite cases such as Bennice v Lakeshore Sav. & Loan Assn., 254 AD2d 731 (4th Dept 1998) for the proposition that ordinarily there is no fiduciary relationship between a bank and a depositor. However, as that Court and others recognize, the conduct of the parties can create a “special relationship.” As the record shows, there are material issues of fact as to whether plaintiff and defendants, through Lambrini, had a sufficiently special relationship to support a claim for breach of fiduciary duty, and even assuming that a special relationship existed, there are material issues of fact as to what transpired between the parties in June 2012. Consequently, the motion for summary judgment must be denied.”