Opinion
582 151755/14.
03-24-2016
Marc STARR, Plaintiff–Appellant, v. FUOCO 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.
Schwartz & Ponterio, PLLC, New York (Matthew F. Schwartz of counsel), for appellant.
Forman Shapiro LLP, New York (Robert W. Forman of counsel), for respondents.
Opinion
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 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 1992 ), a financial advisor such as Eureka is not a “professional” (see Leather v. United States Trust Co. of N.Y., 279 A.D.2d 311, 311–312, 720 N.Y.S.2d 448 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). 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, 22 N.Y.S.3d 22 1st Dept.2015 [internal quotation marks omitted] ).
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.
TOM, J.P., FRIEDMAN, SAXE, RICHTER, JJ., concur.