BENNICE v. LAKESHORE SAVINGS LOAN ASSOCIATION (1998)

Supreme Court erred in denying the motion of Lakeshore Savings & Loan Association (defendant) for summary judgment dismissing the complaint against it.   Defendant established as a matter of law that it had no duty to inform plaintiff of the tax consequences of rolling over the proceeds from liquidation of a tax deferred annuity into an IRA account, and plaintiff failed to raise an issue of fact warranting a trial.

 Absent the existence of a special relationship of trust and confidence, a bank has no duty to inform a customer or depositor of the tax consequences of a transaction (see, Hurley v. TCF Banking & Sav., 414 N.W.2d 584 [Minn. App.];  Pardue v. Bankers First Fed. Sav. & Loan Assn., 175 Ga.App. 814, 334 S.E.2d 926;  see also, Bowes v. National City Bank of N. Y., 169 Misc. 78, 82, 6 N.Y.S.2d 803;  Klein v. First Edina Natl. Bank, 293 Minn. 418, 422, 196 N.W.2d 619, 623;  Blon v. Bank One, Akron, 35 Ohio St.3d 98, 101, 519 N.E.2d 363, 367-368;  Walker v. First State Bank, 849 S.W.2d 337 [Tenn. App.] ).   The relationship between a bank and its depositor is that of debtor and creditor (see, Merrill Lynch, Pierce, Fenner & Smith v. Chemical Bank, 57 N.Y.2d 439, 444, 456 N.Y.S.2d 742, 442 N.E.2d 1253;  Critten v. Chemical Natl. Bank, 171 N.Y. 219, 224, 63 N.E. 969), which, without more, is not a fiduciary or special relationship (see, Marine Midland Bank v. Hallman's Budget Rent-A-Car of Rochester, 204 A.D.2d 1007, 1008, 613 N.Y.S.2d 92;  Bank Leumi Trust Co. of N.Y. v. Block 3102 Corp., 180 A.D.2d 588, 589, 580 N.Y.S.2d 299, lv. denied 80 N.Y.2d 754, 587 N.Y.S.2d 906, 600 N.E.2d 633).   The fact that a person has been a customer of the bank for several years or is acquainted with a bank officer or employee is insufficient to create a special relationship of trust and confidence (see, Manufacturers Hanover Trust Co. v. Yanakas, 7 F.3d 310, 318;  Klein v. First Edina Natl. Bank, supra, 293 Minn., at 422, 196 N.W.2d, at 623;  see also, Chimento Co. v. Banco Popular de Puerto Rico, 208 A.D.2d 385, 386, 617 N.Y.S.2d 157).   The deposition testimony of plaintiff, viewed in the light most favorable to him, failed to raise an issue of fact whether the employees or officers of defendant knew that plaintiff had placed his trust and confidence in them and was relying upon them for advice concerning the tax consequences of the transaction (see, ADT Operations v. Chase Manhattan Bank, 173 Misc.2d 959, 963-964, 662 N.Y.S.2d 190;  Manufacturers Hanover Trust Co. v Yanakas, supra, at 318;  Klein v. First Edina Natl. Bank, supra, 293 Minn., at 422, 196 N.W.2d, at 623).

Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against defendant Lakeshore Savings & Loan Association dismissed.

MEMORANDUM: