

Starr v Fuoco Group LLP (2016 NY Slip Op 02143)





Starr v Fuoco Group LLP


2016 NY Slip Op 02143


Decided on March 24, 2016


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 March 24, 2016

Tom, J.P., Friedman, Saxe, Richter, JJ.


582 151755/14

[*1]Marc Starr, Plaintiff-Appellant,
vFuoco Group LLP, et al., Defendants, Eureka Capital Markets, LLC, et al., Defendants-Respondents.


Schwartz & Ponterio, PLLC, New York (Matthew F. Schwartz of counsel), for appellant.
Forman Shapiro LLP, New York (Robert W. Forman of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 27, 2014, which granted defendants Eureka Capital Markets, LLC (Eureka), Mark Hyman, and Lana Simkina's (collectively, the Eureka defendants) motion to dismiss the third and fourth causes of action (negligence and gross negligence) pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.
While "[p]rofessionals ... may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties" (see Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992]), a financial advisor such as Eureka is not a "professional" (see Leather v United States Trust Co. of N.Y., 279 AD2d 311, 311-312 [1st Dept 2001]). Thus, any duty owed by the Eureka defendants to render financial advisory services to plaintiff in a competent manner must arise out of a contract. Indeed, the complaint alleges that plaintiff "retained" the Eureka defendants and that Eureka "agreed to act as [his] financial advisor" (emphasis added)[FN1]. However, "claims based on negligent or grossly negligent performance of a contract are not cognizable" (Kordower-Zetlin v Home Depot U.S.A., Inc., 134 AD3d 556, 557 [1st Dept 2015] [internal quotation marks omitted]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2016
CLERK
Footnotes

Footnote 1:	The parties dispute whether such a contract would have to be in writing. We need not resolve that dispute, since plaintiff is not suing for breach of contract.


