Gilman v. BHC Securities, Inc.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered October 24, 1997, which, in an action by plaintiff customer against defendant stockbroker for breach of fiduciary duty, fraudulent practices *196in respect to securities and various other common-law and statutory causes of action arising out of defendant’s receipt of “order flow” payments, granted defendant’s motion to dismiss the action as preempted by Federal securities laws, unanimously affirmed, with costs.

The complaint is identical in all pertinent respects to the claims in Guice v Charles Schwab & Co. (89 NY2d 31, cert denied 520 US 1118) held to be preempted by the Securities Exchange Act. The Court of Appeals’ recent decision in Drattel v Toyota Motor Corp. (92 NY2d 35), relied on by plaintiff, deals with an entirely different statute, and is inapposite. Concur— Lerner, P. J., Ellerin, Wallach and Tom, JJ.