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Supreme Court, Appellate Division, First Department, New York.

Eugene PANE, et al., Plaintiffs-Appellants, v. CITIBANK, N.A., Defendant-Respondent.

Decided: June 23, 2005

MAZZARELLI, J.P., NARDELLI, WILLIAMS, SWEENY, JJ. Hecht & Associates, P.C., New York (William J. Geller of counsel), for appellants. Donald Pearce, New York, for respondent.

Judgment, Supreme Court, New York County (Charles Edward Ramos, J.), entered April 30, 2004, dismissing the complaint pursuant to an order, same court and Justice, entered April 22, 2004, which granted defendant's motion for summary judgment, unanimously affirmed, without costs.   Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiffs investors' causes of action for breach of contract and negligence, alleging defendant investment manager's failure to promptly comply with plaintiffs' oral instruction to liquidate their stock holdings in accordance with defendant's oral recommendation made three weeks earlier, were properly dismissed in view of the plain language of the parties' agreement relieving defendant of liability for any losses resulting from its acting or refusing to act on instructions that were not in writing (see Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002] ).   Given that the agreement also expressly authorized defendant to accept or refuse oral instructions, it does not avail plaintiffs to argue that defendant, in accordance with its consistent practice, invited oral approval of its investment recommendation.   Nor can defendant's failure to promptly act on plaintiff's oral instruction, or to advise plaintiffs that the instruction had to be in writing, be deemed a breach of fiduciary duty given a formal written agreement covering the precise subject matter of the alleged fiduciary duty (compare Frydman & Co. v. Credit Suisse First Boston Corp., 272 A.D.2d 236, 237, 708 N.Y.S.2d 77 [2000] ), and no showing that defendant was seeking to advance its or a third party's interests over plaintiff's (compare Bestolife Corp. v. American Amicable Life, 5 A.D.3d 211, 216-217, 774 N.Y.S.2d 18 [2004] ).   Nothing in plaintiffs' subsequent written applications to open new accounts can be construed as an instruction to sell securities.   We have considered plaintiffs' other arguments and find them unavailing.