Opinion
04 Civ. 4205 (PKC).
October 14, 2005
MEMORANDUM AND ORDER
Plaintiff Marvin Rosenblatt brings this action against Christie, Manson Woods Ltd. ("Christie's"), the international auction house, alleging that Christie's failed to pay him certain "introductory commissions" for sales of art collected by Nelson Seabra, a wealthy Brazilian. Plaintiff alleges that, over the course of approximately twelve years, both before and after Mr. Seabra's death, Christie's sold at auction certain items that had belonged to Seabra. Plaintiff has asserted claims for breach of contract, breach of the duty of good faith and fair dealing, breach of fiduciary duty, fraud, and constructive trust.
Plaintiff filed his initial complaint on June 4, 2004. On March 4, 2005, the Court granted plaintiff leave to amend his complaint, and the amended complaint (captioned "[Corrected] Amended Complaint") was filed on March 24, 2005. This is the complaint to which all references are made herein.
Defendant has moved for summary judgment dismissing the complaint in its entirety. Defendant contends that plaintiff's breach of contract and breach of duty of good faith and fair dealing claims, insofar as they relate to sales that took place between 1992 and 1996, are barred by the statute of limitations. Defendant asserts that plaintiff's claims for breach of fiduciary duty, fraud, and constructive trust must also fail for various reasons. As regards sales in 2003 and 2004 of property consigned by a cousin of Mr. Seabra, defendant contends that any such sales are outside the scope of plaintiff's agreement for commissions and, in any event, were not the direct result of plaintiff's introduction of Christie's to Seabra.
In addressing defendant's summary judgment motion, I have considered only plaintiff's version of the facts and such other facts as are not disputed by the plaintiff. Where multiple inferences may be drawn from the facts, I considered only the inference most favorable to plaintiff, the non-movant. For the reasons discussed below, defendant's motion is granted.
FACTS
Plaintiff is a professional jewelry dealer, who had, at various times beginning in the 1960s and continuing up through the 1990s, consigned jewelry and other property to Christie's for sale at auction. (Rosenblatt Tr. 19-21; Rosenblatt Decl. ¶ 3) Sometime shortly before April 11, 1990, plaintiff met with the then-CEO of Christie's, Charles Allsopp (a/k/a Lord Hindlip), and told Allsopp that Seabra was considering selling the contents of his apartment in Rio de Janeiro. (Rosenblatt Tr. 57-58; Rosenblatt Decl. ¶¶ 15-16) Rosenblatt considered himself "an extremely close friend" of Seabra. (Rosenblatt Decl. ¶ 8) At the meeting between plaintiff and Allsopp, Allsopp agreed, on behalf of Christie's, that, if any sale through Christie's were to come about as a result of plaintiff's introduction, he would be entitled to a commission. (Rosenblatt Decl. ¶ 16)
The terms of the commission agreement were memorialized in an April 11, 1990 letter, which stated, in relevant part: "This is just to confirm that we will reserve introductory commission for you, should any sales from Mr. Nelson Seabra materialise [sic]. . . ." (Cmplt. Ex. A) Later in 1990, Christie's sent several individuals to Seabra's apartment in Rio de Janeiro, and various inventories and/or appraisals of Seabra's belongings were prepared. (Rosenblatt Decl. ¶ 24) Plaintiff never discussed the appraisals with Seabra, and, after 1991, never again discussed with Seabra the potential sale of the contents of Seabra's apartment. (Rosenblatt Tr. 81-82, 87) Between March 6, 1992 and November 27, 1996, Christie's auctioned 20 lots consigned by Seabra, the total auction price of which was $171,800. After November 27, 1996, Christie's did not auction any items consigned by Seabra. (Falsetta Decl. ¶ 6, Ex. A; Pl. 56.1 Resp. ¶¶ 19-21) Plaintiff was not aware of the 1992-96 sales until 2004. (Rosenblatt Decl. ¶ 29)
On November 14, 2002, Seabra executed a deed of gift, conveying title to his Rio de Janeiro apartment and all contents thereof to his cousin, Nelson Seabra da Silva Veiga ("Veiga") and Veiga's wife. The deed reserved to Seabra the use of the apartment and its contents during his lifetime. (Veiga Decl. ¶ 8; Salzman Decl. Ex. G; Pl. 56.1 Resp. ¶ 33) On the same day that he executed the deed, Seabra died of a heart attack. (Veiga Decl. ¶ 9; Pl. 56.1 Resp. ¶ 29) As a result of Seabra's death, Veiga and his wife became the sole owners of the apartment and the property within, and were free to keep it or dispose of it as they saw fit. (Veiga Decl. ¶¶ 7-8; Pl. 56.1 Resp. ¶ 34)
The originals of both the Veiga Declaration and the referenced deed were written in Portuguese. Defendant has submitted certified English translations of these documents, and plaintiff has not contested the accuracy of the translations.
Shortly after Seabra's death, Candida Sodre, the Christie's representative for Rio de Janeiro, got in touch with Veiga to inquire about the disposition of the property that was contained within Seabra's apartment. (Sodre Decl. ¶ 18; Pl. 56.1 Resp. ¶ 37) Candida Sodre and her mother, Maria Thereza Sodre (who was Candida Sodre's predecessor as Christie's Brazilian representative), had known Seabra before his death. Seabra had discussed the potential sale of his apartment and its contents with Candida Sodre and other Christie's representatives on numerous occasions during the 1990s, and appraisals were made of certain objects, but no arrangements for such a sale were ever made. (Sodre Decl. ¶¶ 7-15; Pl. 56.1 Resp. ¶ 26) Prior to the commencement of this lawsuit, plaintiff had never heard of either Candida or Maria Thereza Sodre, and Candida Sodre had never heard of plaintiff until after he contacted Christie's in 2004, demanding the commissions that are the basis for this action. (Rosenblatt Tr. 44-45; Sodre Decl. ¶ 25; Pl. 56.1 Resp. ¶¶ 24-25)
The Sodres met with Veiga and his wife at Seabra's apartment to discuss the potential sale of the apartment's contents in February 2003. Over the course of the next several months, Sodre and other Christie's personnel made a concerted effort to convince the Veigas to sell the contents of the apartment through Christie's. These efforts included updating the appraisals done for Seabra in the late 1990s and appraising certain items that had not previously been appraised. (Sodre Decl. ¶¶ 18-21; Pl. 56.1 Resp. ¶¶ 39-43) The Veigas, after entertaining the idea of keeping the property, or of selling to or through some person or entity other than Christie's, decided in June 2003 to consign the contents of the apartment to Christie's for sale at auction. (Veiga Decl. ¶¶ 10-13; Sodre Decl. Ex. A; Pl. 56.1 Resp. ¶¶ 44-46) Sales of property consigned to Christie's by the Veigas took place from October 22, 2003 through October 19, 2004. The auction price for the items sold totaled approximately $2.8 million. (Falsetta Decl. ¶ 8, Ex. B; Pl. 56.1 Resp. ¶ 53)
In January 2004, plaintiff, while in the Christie's office in Paris, came across a catalog that depicted "Property from the Collection of Nelson Grimaldi Seabra" that had been auctioned on October 22, 2003. (Rosenblatt Decl. ¶ 30, Ex. D) Upon discovering that property which had once belonged to Seabra had been sold through Christie's, plaintiff, in February 2004, requested an accounting of the commissions and profits made by Christie's on sales of property traceable to Seabra, and demanded payment of unpaid commissions to which he believed he was entitled. (Cmplt. ¶ 20) Christie's responded to plaintiff's demand in a March 22, 2004 letter from its Senior Vice President and General Counsel, wherein it contended that "whatever introduction Mr. Rosenblat [sic] may have provided in 1990 did not result in any sales through Christie's," and that none of the sales in either time period (1992-96 or 2003-04) "fall within the ambit of Lord Hindlip's letter." (Richards Decl. Ex. F) This suit followed.
SUMMARY JUDGMENT STANDARD
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, the Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation and quotation marks omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of its claim or defense, demonstrating that it is entitled to relief. The evidence on each material element, if unrebutted, must be sufficient to entitle the movant to relief in its favor, as a matter of law. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" as to a material fact. Fed.R.Civ.P. 56(e). A fact is material if it "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, in order to survive summary judgment, plaintiffs must come forth with more than a mere scintilla of evidence in support of their position; they must come forward with evidence "on which the jury could reasonably find for the plaintiff." Id. at 252. "The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any genuine dispute over a material fact, summary judgment is appropriate.
PLAINTIFF IS NOT ENTITLED TO COMMISSIONS ON THE 2003-2004 SALES
Plaintiff's claim to commissions on the 2003-04 sales fails based upon the plain language of the contract. The 1990 letter, which is the only basis for plaintiff's breach of contract claim, provides as follows:
This is just to confirm that we will reserve introductory commission for you, should any sales from Mr. Nelson Seabra materialise [sic], at our normal rate of either two-fifths of the vendor's commission or one-fifth of the net profit, whichever is the greater.
I am waiting to hear from Nelson Seabra when it would be convenient for him to discuss the possible sales and thank you, once again, very much for what could be an excellent introduction.
(Cmplt. Ex. A) The sales that took place in 2003 and 2004 simply are not "sales from Mr. Nelson Seabra. . . ."
Under New York law, in order to make out a claim of breach of contract, a plaintiff must show: "(1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages." Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) (citation omitted). Where a written contract is unambiguous, it should be enforced according to its terms, and "[e]vidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing." W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162 (1990). Whether a contract is ambiguous is a question of law, and extrinsic evidence should not be considered to create an ambiguity where there would otherwise be none. Id. at 162-63.
The parties, in their respective briefs, have assumed, without explanation, the application of New York law. This "implied consent is, of course, sufficient to establish the applicable choice of law." Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 514 n. 4 (2d Cir. 2001) (citation omitted).
Here, the contract, by its terms, entitles plaintiff to a commission only on "sales from Mr. Nelson Seabra. . . ." Plaintiff does not — because he cannot — dispute that the sales in 2003 and 2004 did not result from any action of Seabra; Seabra had died in November 2002. Nor does he or can he dispute that the property ceased to be owned outright by Seabra once the deed of gift was signed shortly before his death. It is undisputed that the decision to sell the property in 2003 and 2004 was, in all respects, made by Veiga, and that prior to his death Seabra had not in any way attempted to influence Veiga to sell the property through Christie's. (Veiga Decl. ¶ 14; Pl. 56.1 Resp. ¶ 47) Plaintiff's argument that the 2003-04 sales are covered by the contract depends on an interpretation of its terms that would have the court read the language to mean "sales (by anyone, at any time) of property which belonged to Nelson Seabra at the time this contract is entered into." This would be a strained and tortured interpretation of the simple words "sales from Mr. Nelson Seabra materialise [sic]. . . ." In furtherance of plaintiff's preferred interpretation, he tries to shift the focus of the agreement away from the identity of the consignor, contending that he is entitled to commission on any sales of the "Inventoried Property," which he defines in the Complaint as "Mr. Seabra's collection of art, furniture and valuable objects" as it existed in January 1990. (Cmplt. ¶ 11) Defendant correctly points out that the contract says no such thing, and that "'sales from Mr. Seabra' in 2003 and 2004" were "an impossibility." (Def. Mem. at 19) Sales of property consigned by Veiga over 13 years after the date of the contract, and after the death of Seabra, cannot be said to fall within the ambit of the agreement. The contractual language simply means that the "sales" must be "from Mr. Nelson Seabra" i.e., by or from that specific person; it is the sale, not the property, that must be from Seabra.
The conclusion that the contract is unambiguous and that the terms thereof do not contemplate plaintiff's entitlement to commissions on sales of property consigned by someone other than Seabra is dispositive of plaintiff's claims for breach of contract as to the 2003-04 sales. Thus, there is no occasion to resort to consideration of parol evidence as to the meaning of the contract. See W.W.W. Assocs., 77 N.Y.2d at 162-63. The Court notes that, in any event, the parol evidence proffered by plaintiff amounts, in large part, to no more than plaintiff's explanation of his unilateral understanding of the meaning of the contract, rather than any understanding between the parties.See, e.g., Rosenblatt Decl. ¶¶ 19 ("The use of the phrase 'sales from Mr. Nelson Seabra' was not understood by me to require that the sale itself be one 'by' Mr. Seabra from some technical standpoint of property law . . . but only that it be a sale of property stemming to any degree 'from' my introduction of Mr. Seabra."); 20 ("I understood 'any sales' to make clear that if 'any' sale of property coming 'from' Mr. Seabra were to occur, my introductory commission would be 'reserved' for me. . . ."); 21 ("I understood Mr. Allsopp's use of the word 'materialise' [sic] to recognize that even though a sale from Mr. Seabra at that time was only a possibility, if that possibility were to come to fruition at some later time — in whatever manner that might occur or 'materialize' — Christie's would 'reserve' an introductory commission for me."). To the extent plaintiff attributes oral statements to Allsopp, they are either irrelevant to, or entirely consistent with, the Court's conclusion as to the meaning of the contract. See, e.g., Rosenblatt Decl. ¶¶ 16 (Allsopp "made a point of stating that I could rely upon Christie's"); 18 (Allsopp said "Christie's would faithfully set aside and hold such funds for my benefit in the event 'any sale materialized'").
Even if the Court were to generously interpret the contract as plaintiff suggests — contrary to its plain meaning — such that 2003-04 sales could somehow be deemed "sales from" the then-deceased Seabra, plaintiff's claims would nonetheless fail. The parties do not dispute that the contract at issue here is properly characterized as one for a finder's fee. "[A] finder is required to introduce and bring the parties together, without any obligation or power to negotiate the transaction, in order to earn the finder's fee." Northeast Gen. Corp. v. Wellington Adver., Inc., 82 N.Y.2d 158, 163 (1993). Even though a finder, unlike a broker, is not generally required to perform any function above and beyond introducing the parties to the transaction, there must be a causal connection between the introduction made by the finder and the ultimate transaction in order for the finder to recover. See Simon v. Electrospace Corp., 32 A.D.2d 62, 66 (1st Dep't. 1969), modified as to damages, 28 N.Y.2d 136 (1971) ("If a transaction ultimately entered upon is a direct result of the disclosure of the opportunity by the finder the latter is entitled to his compensation.").
To establish [the required connection], the courts have consistently required that the finder show more than that his service was a necessary "but for" condition. Rather, the finder must show that the final deal which was carried through flowed directly from [the] introduction. He must establish a continuing connection between the finder's service and the ultimate transaction.Moore v. Sutton Res., Ltd., No. 96 Civ. 7522 (RWS), 1998 WL 67664 at *4 (S.D.N.Y. Feb. 18, 1998), aff'd, 165 F.3d 14 (2d Cir. 1998) (citations and internal quotations omitted).
Plaintiff argues that the language of the contract here is inconsistent with any requirement that there be a direct connection between the introduction and the ultimate transaction. "[P]arties may, in certain circumstances, reach a specific understanding that a finder's commission will be payable even if the finder's efforts are not a direct or procuring cause of [the transaction]. . . ." Barrister Referrals, Ltd. v. Windels, Marx, Davies Ives, 169 A.D.2d 622, 623 (1st Dep't. 1991). According to plaintiff, that this is such a circumstance is evidenced by the use of the word "materialise" [sic], which he points out "has such meanings as 'to appear as if from nowhere.'" (Pl. Opp. Mem. at 17) Mere use of that word, even drawing all inferences in favor of the plaintiff, does not suffice to render the contract outside the realm of the basic structure for analyzing finder's agreements. Under New York law, plaintiff is not entitled to recover.
In Karelitz v. Damson Oil Corp., 820 F.2d 529 (1st Cir. 1987) (Breyer, J.), the First Circuit undertook a thorough examination of New York law applicable to finder's fee contracts, and affirmed the district court's grant of judgment for the defendant notwithstanding a jury verdict in favor of the plaintiff. At issue in Karelitz was a written agreement providing that the defendant would pay a specified commission to the plaintiff in the event that the defendant were to acquire a specified subsidiary of a third party. See id. at 529. In that case, the plaintiff, Karelitz, met Damson, the president of the defendant corporation, in 1971, became his personal stockbroker, and the two began an "extensive, longlasting business relationship." Id. at 530. In 1973, Karelitz suggested to Damson that his company might be interested in purchasing from a company called Buttes Gas and Oil an interest in another corporation called Juniper Oil Corp. Karelitz arranged a meeting among the principals of the various companies, after which Damson told Karelitz that Karelitz "had done his job," and entered into the written agreement confirming that Karelitz had been responsible for introducing Damson to Juniper and providing that Karelitz would be entitled to a 3 percent finder's fee "should [Damson Oil] conclude with Buttes Oil an acquisition . . . or like transaction involving Juniper." Though representatives of the three companies continued to discuss the possible sale of Juniper to Damson Oil over the course of the next few months, no sale took place. Id. at 529-30.
Approximately four years later, in April 1977, Damson met with the president of Buttes to once again discuss the sale of Juniper. Karelitz was not involved in arranging this meeting. While no sale of Juniper was consummated, Damson Oil purchased a drilling barge from Buttes. Later that year, Damson Oil paid a finder's fee to Karelitz based on the barge sale. When Karelitz complained that the amount of the fee was insufficient, Damson replied, "Your big money is going to be when we get the Juniper deal closed." Id. at 530. Two years later, in October 1979, the president of Buttes sought to sell Juniper and compiled a list of 20 potential buyers. Though Damson Oil was not on the list, company officials heard that Juniper was on the market and contacted Buttes. After reviewing confidential information received from Buttes, Damson Oil indicated in February 1980 that it was not interested in purchasing Juniper. In May 1981, Damson and the president of Buttes were again brought together by a third party (not Karelitz), and the ensuing negotiations resulted in the sale of the Juniper interest to Damson Oil in March 1982.Id. at 530-31. Apparently, Damson was so pleased with his company's purchase that he "called Karelitz and asked Karelitz to congratulate him. Karelitz did so; he also asked for his three percent commission. Damson refused to pay." Id. at 531.
The First Circuit agreed with the district court that, on this fact pattern, a reasonable jury could not have found the requisite connection, which it described as "more than simply a necessary 'but-for' condition," between Karelitz's initial introduction of Damson to Buttes/Juniper and the 1982 sale. Id. at 531. It based its holding on three factors. The first was the eight-year gap between the introduction and the beginning of the negotiations which led to the sale. The court recognized that "passage of time alone does not automatically negate a causal connection," but noted that "the ever greater likelihood of new relevant events makes it ever more reasonable to relegate the original introduction to the status of 'background fact' and ever less reasonable to give that introduction the more elevated status of 'cause.'" Id. at 532 (citations omitted). The second factor considered by the court was that "the relevant circumstances changed rather dramatically" during the eight-year lapse, specifically, that Juniper's business grew exponentially and that there were drastic changes in the oil market generally. Id. This lent further support to the idea that "there was no continuity of negotiations — that the successful negotiations of 1981 bore no direct relationship to those of 1973 or 1977." Id. Finally, the court cited "uncontradicted evidence that Buttes' eventual interest in the successful sale had nothing to do with the original introduction." Id.
Taking these factors together, the court affirmed the district court's grant of judgment notwithstanding the verdict, stating, "we do not believe that a reasonable jury could find more than a naked, 'but-for' connection." Id. at 533. This was so despite the fact that Karelitz maintained his relationship with Damson throughout the 1973-81 period, occasionally bringing up the topic of the Juniper investment, and that as late as 1980 Damson had apparently acknowledged to Karelitz that the prospects for an acquisition of Juniper looked favorable. Id. at 531.
In Moore, the district court granted summary judgment to the defendant, Sutton, in a finder's fee suit. There, the plaintiff had, pursuant to a written finder's fee agreement, introduced Sutton to Lehman Brothers ("Lehman") by way of a January 1991 letter. One of the Lehman employees present at some of the initial 1991 meetings between Lehman and Sutton was a man named Eads. Eads left Lehman to join SBC Warburg ("Warburg") in 1993. Sutton had a prior relationship with a Canadian subsidiary of Warburg known as Bunting. See Moore, 1998 WL 67664 at *2. Plaintiff's claim in Moore was premised on a 1996 agreement between Bunting and Sutton whereby Bunting was to be the lead underwriter in an equity financing for Sutton. Id. at *3. The agreement in Moore, unlike the agreement at issue here, did not condition the plaintiff's entitlement to a commission on a transaction being consummated with a particular counterparty, but rather stated that plaintiff would be paid "4% of the money raised for our Company through your efforts." Id. at *1.
The court applied the Karelitz factors and concluded that defendant was entitled to summary judgment dismissing the complaint. Its decision was based on the "five year lapse between introduction and deal, significant unforeseen changes in circumstances, and a prior relationship and multiple third-party interventions providing an independent basis for the transaction." Id. at *6.
Applying the principles of New York law that underlie the holdings in Karelitz and Moore, I conclude that no reasonable jury could find the requisite relationship between Rosenblatt's 1990 introduction of Christie's to Seabra and the 2003 consignment of property by Veiga. The time lapse between the initial introduction and the ultimate sale here — over 13 years — is greater than in either of those two cases. There can be no doubt that there were "changed circumstances." Seabra, the individual to whom Rosenblatt introduced Christie's, and who is named in the commission agreement, died, leaving the property in question to Veiga and his wife, who, Rosenblatt admits, he had never heard of prior to his deposition. (Rosenblatt Tr. 39) There was also an independent relationship between Christie's and Veiga, as well as between Christie's and Seabra; both Maria Thereza Sodre and Candida Sodre were acquainted with both men. (Veiga Decl. ¶ 9; Sodre Decl. ¶¶ 7, 17; Pl. 56.1 Resp. ¶¶ 13, 22, 35-36) Moreover, it is undisputed that, after Seabra's death, Christie's made a concerted effort to persuade Veiga to consign the property to Christie's for sale. (Veiga Decl. ¶¶ 10-13; Sodre Decl. ¶¶ 18-22; Pl. 56.1 Resp. ¶¶ 39-45)
Plaintiff claims there is a "continuing connection" between his 1990 introduction of Christie's to Seabra and the 2003 consignment by Veiga. He submits a document containing a notation from Christie's computer system which, drawing all inferences in plaintiff's favor, might be said to reveal that, as early as 1996, Christie's was preparing to deal with Seabra's heirs should no transaction take place prior to his death. (Richards Decl. Ex. D) He also points to a letter written to Veiga by Pedro Girao of Christie's in February 2003, in which Girao, after expressing his condolences, suggests that the prior relationship between Seabra and Christie's constituted "an extremely good precedent" should Veiga decide to sell any of the items he received from Seabra. (Richards Decl. Ex. C) Plaintiff also contends that Veiga's reference in his declaration to Christie's being "an appropriate company" (Veiga Decl. ¶ 13) was likely "precisely because of the past relationship created by plaintiff." (Pl. Opp. Mem. at 21)
None of this, however, suffices to defeat summary judgment under the test employed in Karelitz and Moore. Even if plaintiff could arguably establish at trial that had he not introduced Christie's to Seabra in 1990, Veiga would not have consigned the property in question to Christie's in 2003, such a showing would not entitle him to recover. The causal relationship which must be shown between the introduction and the final transaction requires that the plaintiff "show more than that his service was a necessary condition. Rather, the finder must show that 'the deal that was made resulted and flowed directly from the original' introduction. He must establish a 'continuing connection' between the finder's service and the ultimate transaction." Karelitz, 820 F.2d at 531 (quoting Seckendorff v. Halsey, Stuart Co., 234 A.D. 61, 71 (1st Dep't 1931),rev'd on other grounds, 259 N.Y. 353 (1932) and Simon v. Electrospace Corp., 28 N.Y.2d 136, 142 (1971)). No reasonable jury could find such a connection here. Drawing all reasonable inferences in plaintiff's favor, defendant is entitled to summary judgment with respect to breach of contract claims relating to the 2003-04 sales.
The conclusion that the 2003-04 sales do not fall within the scope of the contract also dooms plaintiff's claims for breach of the duty of good faith and fair dealing as to those sales. Such claims are derivative and duplicative of breach of contract claims, and cannot create contractual rights not contemplated in the contract at issue. See, e.g., Fasolino Foods Co. v. Banca Nazionale Del Lavoro, 961 F.2d 1052, 1056 (2d Cir. 1992);Kingdom 5-KR-41, Ltd. v. Star Cruises PLC, No. 01 Civ. 2946 (DLC), 2004 WL 1926090 at *5 (S.D.N.Y. Aug. 31, 2004) ("Having failed to raise an issue of fact that would support a finding that BNY breached a contractual duty to Kingdom, Kingdom cannot salvage its contractual claim by resort to the implied duty of good faith and fair dealing. The doctrine cannot be used to create duties that do not arise from the contract and are inconsistent with the terms of the contract."); Canstar v. J.A. Jones Constr. Co.; 212 A.D.2d 452, 453 (1st Dep't. 1995) (dismissing cause of action for breach of duty of good faith and fair dealing as "intrinsically tied to the damages allegedly resulting from a breach of the contract") (citing Fasolino Foods, 961 F.2d at 1056).
CHRISTIE'S OWED PLAINTIFF NO FIDUCIARY DUTY
Defendant is also entitled to summary judgment on plaintiff's claims of breach of fiduciary duty for the fundamental reason that plaintiff cannot establish the existence of a fiduciary relationship between himself and Christie's with regard to his introduction of Christie's and Seabra. "Entering into a conventional business relationship generally does not create a fiduciary relationship." Maalouf v. Salomon Smith Barney, Inc., No. 02 Civ. 4770 (SAS), 2003 WL 1858153 at *5 (S.D.N.Y. Apr. 10, 2003) (citations omitted); see also Chrysler Credit Corp. v. Dioguardi Jeep Eagle, Inc., 192 A.D.2d 1066, 1068 (4th Dep't 1993) ("The existence of a contractual relationship between the parties, by itself, created no fiduciary duty. . . ."). This rule is applicable in the case of finder's contracts. See Northeast Gen., 82 N.Y.2d at 160 (finder does not owe fiduciary duty to counterparty absent explicit term in contract); Village on Canon v. Bankers Trust Co., 920 F. Supp. 520, 531-33 (S.D.N.Y. 1996). That plaintiff had engaged in business transactions with Christie's, in his personal capacity and entirely unrelated to Seabra, and that he had a longstanding personal relationship with Christie's Chairman, does not transform the contractual relationship at issue here into a fiduciary one. See, e.g., Wit Holding Corp. v. Klein, 282 A.D.2d 527, 529 (2d Dep't. 2001). Assuming plaintiff's non-Seabra-related consignments to Christie's had imposed a fiduciary duty on Christie's, such a duty would apply only in connection with the particular consignments. See Mickle v. Christie's, Inc., 207 F.Supp.2d 237, 245 (S.D.N.Y. 2002). Such past dealings bear no relation to the 1990 introductory commission contract.
Plaintiff contends that, because his agreement with Christie's stated that Christie's would "reserve" commissions for him based on potential sales of property consigned by Seabra, Christie's became a fiduciary. Collecting and remitting money due to a contractual counterparty, however, does not make one a fiduciary.See Rodgers v. Roulette Records, Inc., 677 F.Supp. 731, 739 (S.D.N.Y. 1988) ("the fact that Roulette or Levy collected royalties or fees which it had an obligation to pass on to plaintiff did not make them plaintiff's fiduciaries"); see also Vitale v. Sternberg, 307 A.D.2d 107, 109-10 (1st Dep't. 2003). Nor can a fiduciary relationship be found based on a plaintiff's repeated conclusory assertion of a relationship of "trust and confidence." See, e.g., Holloway v. King, 361 F. Supp.2d 351, 360-61 (S.D.N.Y. 2005).
Granting plaintiff the benefit of all reasonable inferences, no reasonable jury could find that Christie's owed plaintiff a fiduciary duty in conjunction with the agreement for introductory commissions.
Defendant is entitled to summary judgment dismissing plaintiff's cause action for breach of fiduciary duty.
PLAINTIFF'S FRAUD CLAIMS MUST ALSO BE DISMISSED
Plaintiff has also asserted a cause of action based in fraud. As best as can be gleaned from the complaint and his opposition papers, plaintiff's fraud claim is premised on Christie's failure to inform him of the sales at issue in this case. See Cmplt. ¶ 18 ("In violation of Christie's promises and fiduciary duties to Plaintiff, Christie's willfully and deliberately failed to report any of those sales to Plaintiff."). As discussed above, however, Christie's in fact owed no fiduciary duty to plaintiff in connection with the introductory commission arrangement. This lack of a fiduciary relationship dooms a fraud claim based on omission, rather than affirmative misstatements. "[I]n the absence of a confidential or fiduciary relationship between [the parties] imposing a duty to disclose, [defendant's] mere silence, without some act which deceived [plaintiff] cannot constitute a concealment that is actionable as fraud." Mobil Oil Corp. v. Joshi, 202 A.D.2d 318, 318 (1st Dep't. 1994) (citation omitted).
Plaintiff claims that, even if Christie's had no fiduciary duty to plaintiff, it assumed a duty to disclose when Allsopp allegedly assured plaintiff that Christie's would "keep him posted" on sales of items consigned by Seabra. (Pl. Opp. Mem. at 13) Even if Christie's had such a duty, however, plaintiff's fraud claims are duplicative of his breach of contract claims, and thus, must be dismissed. Under New York law, "[i]t is well settled that a cause of action for fraud will not arise when the only fraud charged relates to a breach of contract" Gordon v. Dino De Laurentiis Corp., 141 A.D.2d 435, 436 (1st Dep't. 1988) (citation omitted); see also River Glen Assocs. v. Merrill Lynch Credit Corp., 295 A.D.2d 274, 275 (1st Dep't 2002). "[W]hen the alleged fraud is not separate and distinct from a failure to perform under a contract, the claim is treated as one sounding in contract rather than tort." Reuben H. Donnelley Corp. v. Mark I Mktg. Corp., 893 F. Supp. 285, 289 (S.D.N.Y. 1995) (citations omitted). Here, as in Reuben H. Donnelley, the only alleged fraud is Christie's concealment of the 1992-96 sales to avoid paying plaintiff the commissions he was allegedly due. "Under New York law . . . alleged concealment of a breach is insufficient to transform what would normally be a breach of contract action into one for fraud." Id. at 290 (citations omitted); see also Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 335-36 (S.D.N.Y. 2003) (dismissing fraud claim where alleged fraudulent statements consisted only of "purported false representations regarding [defendant's] adherence to the terms of the [contract]").
To state a cause of action for fraud independent of a breach of contract claim, the alleged fraud must be "collateral or extraneous to the contract." Coppola v. Applied Elec. Corp., 288 A.D.2d 41, 42 (1st Dep't. 2001) (citations omitted); see also Weitz v. Smith, 231 A.D.2d 518, 519 (2d Dep't. 1996). Here, plaintiff ties the alleged duty of disclosure back to the language of the contract. See Rosenblatt Decl. ¶ 20 ("I understood 'any sales' [in the agreement] to make clear . . . that I could trust Christie's both to inform me of the sale and to pay me the agreed-upon commissions upon my subsequent request."). Plaintiff's fraud claim is "merely a disguised contract claim as the gravamen of the fraud claim is that defendant promised to pay him commissions and failed to do so. Therefore, this claim must be dismissed." Metzler v. Harris Corp., No. 00 Civ. 5847 (HB), 2001 WL 194911 at *3 (S.D.N.Y. Feb. 26, 2001) (footnote and citation omitted). Moreover, plaintiff does not seek damages for fraud over and above those he seeks for breach of contract. See Rockefeller Univ. v. Tishman Constr. Corp. of New York, 240 A.D.2d 341, 342 (1st Dep't.),lv. to appeal denied, 91 N.Y.2d 803 (1997) (fraudulent misrepresentation claim duplicative of breach of contract claim "since the identical contractual benefit of the bargain recovery is sought").
That summary judgment is granted in favor of defendant on plaintiff's breach of contract claim does not alter the conclusion that the fraud claim is duplicative. See e.g., River Glen Assocs., 295 A.D.2d at 275 (dismissing fraud claims as "merely duplicative of the insufficient breach of contract cause of action") (citation omitted); Morgan v. A.O. Smith Corp., 265 A.D.2d 536, 536 (2d Dep't. 1999) lv. to appeal denied, 95 N.Y.2d 758 (2000) (affirming grant of summary judgment where fraud allegations were duplicative of allegations supporting time-barred causes of action for breach of warranty).
PLAINTIFF'S CLAIMS WITH RESPECT TO THE 1992-96 SALES ARE BARRED BY THE STATUTE OF LIMITATIONS
As regards the sales of property consigned by Seabra between 1992 and 1996, plaintiff's claims for breach of contract, and the concomitant claims for breach of the duty of good faith and fair dealing, are barred by the statute of limitations. The statute of limitations for breach of contract claims in New York is six years. See N.Y. CPLR § 213(2). The statute begins to run at the time of the breach, regardless of whether the plaintiff is aware of the breach at that time. See Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402-04 (1993); ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 360 (2d Cir. 1997) ("[I]n New York it is well settled that the statute of limitation for breach of contract begins to run from the day the contract was breached, not from the day the breach was discovered, or should have been discovered.") (citations omitted); T N PLC v. Fred S. James Co., 29 F.3d 57, 60 (2d Cir. 1994) ("the Court of Appeals has made clear that neither knowledge of the breach nor cognizable damages are required to start the statute of limitations running at breach").
Plaintiff contends that his action should not be deemed to have accrued until he made demand for payment in 2004. The cases upon which he relies are inapposite. See Continental Cas. Co. v. Stronghold Ins. Co., 77 F.3d 16, 21 (2d Cir. 1996) (notice of loss to reinsurers was a condition precedent to indemnity); In re Estate of Allen, 30 Misc.2d 874, 879-80 (Surr.Ct. N.Y. Co. 1961) (action to compel administrator of estate to deliver securities to decedent's heirs). Plaintiff's breach of contract action accrued at the time of breach, the time the earlier sales of property consigned by Seabra took place, entitling him to his commission.
CPLR § 206(a)(1), alternatively relied on by plaintiff, is inapplicable. That section only applies "where a demand is necessary to entitle a person to commence an action." A demand was not a condition precedent to plaintiff's right to bring a claim for breach of contract. See Knauss v. Colpix Records, No. 80 Civ. 2255 (PNL), 1982 U.S. Dist. LEXIS 11847 at * 4-*5 (S.D.N.Y. Mar. 19, 1982); Glynwill Invs., N.V. v. Prudential Sec., Inc., No. 92 Civ. 9267 (CSH), 1997 WL 12802 at *3 (S.D.N.Y. Jan. 14, 1997). Moreover, the section applies only "where a right grows out of the receipt or detention of money or property by a trustee, agent, attorney or other person acting in a fiduciary capacity." CPLR § 206(a)(1); see also Knauss, 1982 U.S. Dist. LEXIS 11847 at *5. As discussed above, the Court has determined that the relationship between plaintiff and Christie's was not fiduciary in nature.
The last of the sales of property consigned by Seabra took place in November 1996. This action was commenced on June 4, 2004, well over six years later. The statute of limitations bars the breach of contract claim as to the earlier sales. The claim for breach of the duty of good faith and fair dealing as to these sales is similarly barred by the six-year statute of limitations.See Liberman v. Worden, 268 A.D.2d 337, 339 (1st Dep't. 2000); Mirman v. Berk Michaels, P.C., No. 91 Civ. 8606 (JFK), 1994 WL 410881 at *13 (S.D.N.Y. Aug. 3, 1994). CONSTRUCTIVE TRUST
Because there was no fiduciary relationship between the parties, plaintiff's constructive trust claim must fail. Under New York law, "[i]n general, though as an equitable doctrine its application to particular circumstances is susceptible of some flexibility, to establish a constructive trust there must be provided: (1) a confidential or fiduciary relation, (2) a promise, express or implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment." Bankers Sec. Life Ins. Soc'y v. Shakerdge, 49 N.Y.2d 939, 940 (1980) (citations omitted); see also Cerabono v. Price, 7 A.D.3d 479, 480 (2d Dep't. 2004), lv. to appeal denied, 4 N.Y.3d 704 (2005). Where equity does not demand deviation from these requirements (see Ellis v. Provident Life Accident Ins. Co., 3 F. Supp.2d 399, 412 (S.D.N.Y. 1998), aff'd, 172 F.3d 37 (2d Cir. 1999)), "[t]he absence of the requisite confidential relationship defeats plaintiff['s] efforts to impose a constructive trust."Waldman v. Englishtown Sportswear, Ltd., 92 A.D.2d 833, 836 (1st Dep't. 1983); see also Rodgers v. Roulette Records. Inc., 677 F. Supp. 731, 739 (S.D.N.Y. 1988) ("As concluded above, the parties did not have a fiduciary relationship and thus plaintiff cannot maintain an action to establish a constructive trust.") (footnote omitted). Viewing the evidence in the light most favorable to plaintiff and granting him the benefit of all reasonable inferences, there is no basis for the imposition of a constructive trust.
The cause of action for constructive trust as relates to the 1992-96 sales would, in any event, be barred by the statute of limitations. "An action to impose a constructive trust is governed by the six-year statute of limitations provided by CPLR 213(1), which commences to run upon occurrence of the wrongful act giving rise to a duty of restitution, and not from the time when the facts constituting the fraud are discovered." Kaufman v. Cohen, 307 A.D.2d 113, 127 (1st Dep't. 2003) (citations omitted).
VI. CONCLUSION
For the reasons set forth herein, defendant's motion for summary judgment dismissing plaintiff's complaint is GRANTED. The Clerk is directed to enter judgment in favor of the defendant.
SO ORDERED.