Opinion
July 16, 1993
Appeal from the Supreme Court, Erie County, Fallon, J.
Present — Denman, P.J., Pine, Lawton, Boomer and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly dismissed plaintiff's complaint against defendant Key Trust Company (defendant). Plaintiff's cause of action alleging breach of trust fails because an essential element of a valid trust, the intent to pass legal title of the trust fund to defendant, was absent; rather, pursuant to the express terms of the custodian and trust agreements, defendant was to serve as custodian of the trust fund (see, Matter of Ihmsen, 253 App. Div. 472; see generally, Brown v. Spohr, 180 N.Y. 201, 209; Matter of Frank, 52 A.D.2d 335, 338). Plaintiff's negligent misrepresentation causes of action were properly dismissed because essential elements of such a cause of action, i.e., privity of contract or a relationship "so close as to approach that of privity" (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 N.Y.2d 417, 424), and reasonable reliance on information imparted by defendant (Bower v. Atlis Sys., 182 A.D.2d 951, 953, lv denied 80 N.Y.2d 758), were absent. Plaintiff's breach of contract cause of action also was properly dismissed. It is undisputed that defendant attempted to obtain adequate funding once it discovered that the bond submitted by plaintiff was inadequate; plaintiff cites no authority requiring defendant itself to provide adequate funding.