Opinion
2014-04-22
Zubair KAZI, et al., Plaintiffs–Appellants, v. GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION OF CONNECTICUT, et al., Defendants–Respondents.
Richard A. Kraslow, P.C., Melville (Richard A. Kraslow of counsel), for appellants. Reed Smith LLP, New York (Christopher A. Lynch of counsel), for respondents.
Richard A. Kraslow, P.C., Melville (Richard A. Kraslow of counsel), for appellants. Reed Smith LLP, New York (Christopher A. Lynch of counsel), for respondents.
MAZZARELLI, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered on or about February 21, 2013, which granted defendants' motion to dismiss the complaint, unanimously affirmed, with costs.
Defendants obtained judgments against plaintiffs in an aggregate amount of more than $17 million on written loan guaranties made by plaintiffs in favor of defendants. In this action, plaintiffs seek an equitable accounting alleging the judgments have been satisfied and cancellation of the judgments obtained in the prior action.
Plaintiffs, guarantors of the loans made between affiliated entities and defendants, did not allege sufficient facts of a fiduciary relationship with defendants so as to maintain a claim for an accounting. Contrary to plaintiffs' contention, no property was pledged or entrusted to defendants ( see South Shore Thrift Corp. v. National Bank of Far Rockaway, 276 N.Y. 465, 469, 12 N.E.2d 546 [1938]; Chalasani v. State Bank of India, N.Y. Branch, 235 A.D.2d 449, 653 N.Y.S.2d 28 [2d Dept.1997],lv. dismissed90 N.Y.2d 936, 664 N.Y.S.2d 273, 686 N.E.2d 1368 [1997] ). The dispute was simply between debtors and creditors, which is a contractual relationship, and therefore, not a fiduciary relationship ( see SNS Bank v. Citibank, 7 A.D.3d 352, 354, 777 N.Y.S.2d 62 [1st Dept.2004];Marine Midland Bank v. Yoruk, 242 A.D.2d 932, 933, 662 N.Y.S.2d 957 [4th Dept.1997] ).
Plaintiffs provide no basis to set aside a final determination concerning their indebtedness in a separate action as they did not allege that the court lacked jurisdiction, or that fraud occurred ( see Ruben v. American & Foreign Ins. Co., 185 A.D.2d 63, 66, 592 N.Y.S.2d 167 [4th Dept.1992];Di Russo v. Di Russo, 55 Misc.2d 839, 844, 287 N.Y.S.2d 171 [Sup. Ct., Nassau County 1968] ). Plaintiffs' remedy was to raise the dispute that the judgment has been satisfied in a motion pursuant to CPLR 5021(a)(2) ( see Malik v. Noe, 54 A.D.3d 733, 734, 864 N.Y.S.2d 82 [2d Dept.2008] ), and where there is conflicting documentary evidence, an evidentiary hearing should be held ( id.).