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Guilderland Reinsurance Co. v. Gold

227 A.D.2d 759 Court N.Y. App. Div. Decision date 1996-05-09 English

Delivered by Casey, J.

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p. 759
Guilderland Reinsurance Company, Plaintiff, v Robert Gold, Defendant and Third-Party Plaintiff-Respondent. Sherwood De Stephano et al., Third-Party Defendants-Appellants.
[642 NYS2d 99]

Appeal from an order of the Supreme Court (Keegan, J.), entered May 30, 1995 in Albany County, which denied third-party defendants’ motion to dismiss the third-party complaint.

Plaintiff’s complaint seeks purely economic loss for defendant’s breach of contract in refusing to close on a real estate transaction. Third-party defendants moved to dismiss the third-

p. 760
party complaint on the ground that no claim for contribution lies in these circumstances (see, e.g., Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21 ). The third-party complaint, however, does not assert a claim for contribution. Rather, it alleges the existence of a contractual and fiduciary relationship between defendant and third-party defendants, and further alleges that third-party defendants used confidential information from the fiduciary relationship to induce defendant to enter into the contract with plaintiff, in derogation of defendant’s best interests and in contravention of third-party defendants’ fiduciary duty to defendant.

In light of the scope of the inquiry on a CPLR 3211 (a) (7) motion to dismiss (see, Rovello v Orofino Realty Co., 40 NY2d 633 ), Supreme Court did not err in denying third-party defendants’ motion. "[A] licensed real estate broker is a fiduciary for his client, and must exercise the utmost good faith and loyalty in his performance” (Weissman v Mertz, 128 AD2d 609 , 610, appeal dismissed 69 NY2d 1036 , lv denied 70 NY2d 608 ). Accepting the allegations of the third-party complaint as true for the purposes of this motion addressed only to the sufficiency of the pleading, defendant has stated a claim based upon the alleged existence of a fiduciary relationship between defendant and third-party defendants and upon third-party defendants’ alleged breach of the fiduciary duty owed to defendant as a result of that relationship.

Cardona, P. J., White, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

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