Sebastian Holdings, Inc. v Deutsche Bank, AG., 2013 NY Slip Op 05000 [108 AD3d 433]

July 2, 2013

Appellate Division, First Department

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Zaroff & Zaroff LLP, Garden City (Richard A. Lafont of counsel), for appellant.

Cahill Gordon & Reindel LLP, New York (David G. Januszewski of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 9, 2012, which, to the extent appealed from, granted in part defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff’s sixth and ninth claims for breach of contract arising from unauthorized trades were properly dismissed. The agreements expressly absolved defendant from any liability for unauthorized trades by plaintiff’s agent. Indeed, as a general matter, the agent’s knowledge and conduct would have been imputed to plaintiff at any rate, under basic agency principles ( Kirschner v KPMG LLP , 15 NY3d 446 , 465 [2010]). The parallel negligence claim (eighth cause of action) was properly dismissed as duplicative of the contract claims ( Clark-Fitzpatrick, Inc. v Long Is. R.R. Co. , 70 NY2d 382, 389 [1987]). Nor was there any showing that the defendant was subject to duties beyond the roughly 13 written agreements between the parties ( see Sommer v Federal Signal Corp. , 79 NY2d 540, 551-553 [1992]).

The conversion claim and quasi contract claims (eleventh through thirteenth causes of action) were also properly dismissed. The conversion claim was duplicative of the contract claim in the ninth cause of action and the quasi contract claims covered the same subject matter as the express contract among the parties ( Kopel v Bandwidth Tech. Corp. , 56 AD3d 320 [1st Dept 2008]; Clark-Fitzpatrick , 70 NY2d at 388). Nor was there any dispute as to the validity or enforceability of those agreements, as opposed to their interpretation. Similarly, the seventh cause of action, for breach of the implied covenant of good faith and fair dealing, was properly dismissed as duplicative of the breach of contract claims ( Logan Advisors, LLC v Patriarch [*2] Partners, LLC , 63 AD3d 440 , 443 [1st Dept 2009]). Finally, given that the conversion claim was properly dismissed, the claim for punitive damages based on that conduct was also properly dismissed. Concur—Mazzarelli, J.P., Acosta, Saxe, Freedman and Clark, JJ. [Prior Case History: 2012 NY Slip Op 33155(U).].