     11-3107
     Weshnak v. Bank of America



                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
     APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
     CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
     COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 26th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       MARILYN WESHNAK, et al.,
14                Plaintiffs-Appellants,
15
16                   -v.-                                          11-3107
17
18       BANK OF AMERICA, N.A.,
19                Defendant-Appellee,
20
21       NICHOLAS COSMO, et al.,
22                Defendants.
23       - - - - - - - - - - - - - - - - - - - -X
24


                                              1
 1   FOR APPELLANTS:            Susan K. Alexander (Sanford
 2                              Svetcov, Samuel H. Rudman,
 3                              Robert M. Rothman, Edward Y.
 4                              Kroub, on the brief), Robbins
 5                              Geller Rudman & Dowd LLP,
 6                              Melville, NY, San Francisco, CA.
 7
 8   FOR APPELLEE:              Pamela A. Miller (Michael D.
 9                              Schissel, on the brief), Arnold
10                              & Porter LLP, New York, NY.
11
12        Appeal from a judgment of the United States District
13   Court for the Eastern District of New York (Spatt, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19
20        Plaintiffs, victims in a Ponzi scheme perpetrated by
21   Nicholas Cosmo through Agape World, Inc., and other entities
22   (collectively, “Agape”), appeal the dismissal of their
23   amended consolidated class action complaint against Bank of
24   America (“BOA”), which alleges aiding and abetting fraud,
25   conversion, and breach of fiduciary duty. We assume the
26   parties’ familiarity with the underlying facts, the
27   procedural history, and the issues presented for review.
28
29        “[W]e review the grant of a Rule 12(b)(6) motion to
30   dismiss de novo, construing the complaint liberally,
31   accepting all factual allegations in the complaint as true,
32   and drawing all reasonable inferences in the plaintiff’s
33   favor.” Chase Grp. Alliance LLC v. City of N.Y. Dep’t of
34   Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation
35   marks omitted). “To survive a motion to dismiss, a
36   complaint must contain sufficient factual matter, accepted
37   as true, to ‘state a claim to relief that is plausible on
38   its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
39   (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
40   570 (2007)).
41
42        “Under New York law, the elements of aiding and
43   abetting a breach of fiduciary duty, aiding and abetting a
44   conversion, and aiding and abetting a fraud are
45   substantially similar. The claims require the existence of
46   a primary violation, actual knowledge of the violation on
47   the part of the aider and abettor, and substantial

                                  2
 1   assistance.” Kirschner v. Bennett, 648 F. Supp. 2d 525, 533
 2   (S.D.N.Y. 2009); see also Lerner v. Fleet Bank, N.A., 459
 3   F.3d 273, 292-95 (2d Cir. 2006). We need not determine
 4   whether Plaintiffs adequately pled that BOA had actual
 5   knowledge of Cosmo and Agape’s violation; Plaintiffs’
 6   complaint does not plausibly state a claim that BOA
 7   substantially assisted in it.
 8
 9        Plaintiffs allege that Tom Sullivan, a BOA senior
10   manager, recommended a structure of accounts that allowed
11   Agape to move money from sub-accounts into an operating
12   account and a Remote Depository System that allowed Agape to
13   deposit checks from its headquarters. Plaintiffs allege
14   that Rebecca Campagnuolo, a BOA employee, provided banking
15   services to Agape from within Agape’s headquarters,
16   including issuance of a check from an Agape account to an
17   investor. Plaintiffs do not sufficiently allege that these
18   services differed from those BOA provided other large
19   commercial customers. A bank’s provision of “its usual
20   banking services to a customer . . . does not in and of
21   itself rise to the level of substantial assistance.” Rosner
22   v. Bank of China, 2008 WL 5416380, No. 06-CV-13562, at *12
23   (S.D.N.Y. Dec. 18, 2008) (internal quotation marks omitted);
24   see also e.g., Ryan v. Hunton & Williams, 2000 WL 1375265,
25   No. 99-CV-5938, at *9 (E.D.N.Y Sept. 20, 2000).
26
27        Plaintiffs allege that when BOA customers received
28   large deposits into their accounts, Campagnuolo tipped off
29   Agape brokers so that they could solicit investments from
30   these potential victims, and that Campagnuolo’s husband
31   received three payments totaling more than $31,000 from
32   Agape. An employer is not vicariously liable for acts
33   committed by employees “for personal motives unrelated to
34   the furtherance of the employer[’s] business.” Artalyan,
35   Inc. v. Kitridge Realty Co., 52 A.D.3d 405, 407, 860
36   N.Y.S.2d 100, 102 (1st Dep’t 2008); see also Swarna v. Al-
37   Awadi, 622 F.3d 123, 144 (2d Cir. 2010). It is implausible
38   that Campagnuolo acted in furtherance of BOA’s business by
39   identifying its customers to be defrauded.
40
41
42
43
44
45
46
47

                                  3
1        Finding no merit in Plaintiffs’ remaining arguments, we
2   hereby AFFIRM the judgment of the district court.
3
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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