Ciccone v. Hersh
Opinion of the Court
SUMMARY ORDER
Plaintiffs-appellants Laurence Ciccone and Christine Ciccone appeal from a January 8, 2008 Decision and Order of the Hon. Victor Marrero, United States District Judge for the Southern District of New York, and the Judgment entered thereon, granting defendants-appellees’ motions for summary judgment and dismissing the Ciccones’ amended complaint, which asserted a claim of breach of fiduciary duty. Ciccone v. Hersh, 530 F.Supp.2d 574 (S.D.N.Y. 2008). We assume the parties’ familiarity with the facts, procedural background, and specification of issues on appeal.
Upon review, we conclude that the district court did not err in granting summary judgment. In doing so, we make two disputable concessions for the purposes of this appeal. First, that the Cic-cones have raised a genuine issue of fact as to whether their broker/financial advisor, Mitchell Hersh, owed them a fiduciary duty, notwithstanding the nondiscretionary nature of their investments. See de Kwiatkowski v. Bear, Stearns & Co., Inc., 306 F.3d 1293, 1308 (2d Cir. 2002) (noting that the law may impose an ongoing duty on broker in nondiscretionary account in certain “transformative ‘special circumstances,’ ” including where there is “a closer than arms-length relationship with the broker”).
The Ciccones have not raised a genuine issue of fact that either or both relationships continued beyond the end of 2002. We arrive at that conclusion for substantially the reasons stated by the district court, see Ciccone, 530 F.Supp.2d at 579-80, but emphasize the following two points: (1)Mr. Ciccone testified that the Ciccones lost faith in Hersh towards the end of 2002; and (2) the Ciccones stated that they did not communicate with Hersh since in or about January or February 2002.
We, therefore, affirm the judgment of the district court.
. We note that this “special circumstance” is not clearly alleged in the Ciccones' amended complaint. Further, the amended complaint does not suggest that any of the other “special circumstances” described in de Kwiatkowski apply. See 306 F.3d at 1308.
. We further accept, as the Ciccones contend, that New York law governs the claimed
Reference
- Full Case Name
- Laurence CICCONE and Christine Ciccone v. Mitchell HERSH, New England Life Insurance Company and Triad Financial, Inc., Burns Financial Partners, Inc., doing business as The Burns Agency
- Cited By
- 1 case
- Status
- Published