People v. Merkin

People v Merkin (2015 NY Slip Op 00290)

People v Merkin

2015 NY Slip Op 00290

Decided on January 8, 2015

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 January 8, 2015
Sweeny, J.P., Andrias, Moskowitz, Richter, Clark, JJ.

13914 450879/09

[*1] The People of the State of New York, Plaintiff,

v

J. Ezra Merkin, et al., Defendants, Ariel Fund Limited, et al., Relief Defendants.



Joshua M. Berman, Petitioner-Appellant, -against-David B. Pitofsky, Respondent-Respondent. Ralph C. Dawson, Relief Respondent-Respondent.

Joshua M. Berman, New York, appellant pro se.

Goodwin Procter LLP, New York (Daniel M. Glosband of counsel), for David B. Pitofsky, respondent.

Fulbright & Jaworski LLP, New York (Judith A. Archer of counsel), for Ralph C. Dawson, respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered January 23, 2014, which denied petitioner's application for leave to bring suit against the court-appointed receiver of a hedge fund, unanimously affirmed, without costs.

Consistent with the receiver's limited immunity pursuant to the court's appointment order, petitioner seeks to bring claims against the receiver for gross negligence and material breach of fiduciary duty (see Mosher-Simons v County of Allegany , 99 NY2d 214, 219-220 [2002]). However, the receiver owed no fiduciary duty to petitioner; his fiduciary duty was to the fund as a whole, not to any particular investor (see Matter of Kane [Freedman—Tenenbaum] , 75 NY2d 511, 515 [1990]). Nor did petitioner allege facts sufficient to make out a claim for gross negligence (see Colnaghi, U.S.A. v Jewelers Protection Servs. , 81 NY2d 821 [1993]). Petitioner [*2]cannot show that respondent, who acted at all times to maximize the benefit to the fund, was reckless with regard to petitioner's rights. In particular, respondent was obligated in negotiating the settlement with defendant Merkin to protect the fund, not petitioner.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 8, 2015

CLERK