On May 30, 2023, the First Department issued a decision in ERA Capital L.P. v. Soleil Chartered Bank, 2023 NY Slip Op. 02845, holding that even though the defendant did not have a fiduciary duty to the plaintiff, it had a sufficiently close relationship that it could be held liable for negligence, explaining:
The fiduciary duty claim was appropriately dismissed, as there is no evidence in the record showing that Regions exercise[d] control and dominance over plaintiff. Regions, which ultimately acted as adviser for two letters of credit issued by Soleil Chartered Bank, did not negotiate on plaintiff’s behalf, have authority to bind plaintiff to any agreement with the issuer or plaintiff’s borrower, or counsel plaintiff as to the substance of the deals at issue.
Supreme Court properly denied summary judgment on the negligent misrepresentation claim. The evidence demonstrates that the parties may have had a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff. Further, there are triable issues of fact as to whether Regions’ statement that the issuing bank was good to proceed was incorrect, and whether plaintiff reasonably relied on the statement when accepting the letter of credit on which payment was ultimately denied.
(Internal quotations and citations omitted).