Katt v. Markov , 993 N.Y.S.2d 891 ( 2014 )

Katt v Markov (2014 NY Slip Op 07102)

Katt v Markov

2014 NY Slip Op 07102

Decided on October 21, 2014

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 October 21, 2014
Tom, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.

13264 651699/12

[*1] Malcolm Katt, Plaintiff-Appellant,

v

Dmitry Markov, Defendant-Respondent.

Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant.

Michael C. Barrows, New York, for respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 3, 2013, which, after a nonjury trial, directed that judgment be entered in favor of defendant, unanimously affirmed, with costs.

By entering into an agreement for the purchase of plaintiff's goods by defendant, the parties terminated their fiduciary relationship of auctioneer and consignor (Dubbs v Stribling & Assoc., 274 AD2d 32 [1st Dept 2000], affd 96 NY2d 337 [2001]). Thus, plaintiff's agreement not to sue defendant in exchange for $100,000, which he acknowledged was paid, was correctly analyzed as a transaction at arm's length. Moreover, as a fiduciary, defendant could have obtained a release (Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C.V., 17 NY3d 269, 278-279 [2011]). Even if defendant were found to be a fiduciary, plaintiff's constructive fraud claim would fail for lack of evidence that the stated risks of auction (nonpayment, challenges to the bona fides of the sale items) were not true risks (see generally Brown v Lockwood, 76 AD2d 721, 733 [2d Dept 1980]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 21, 2014

CLERK