DRAGON HEAD LLC v. Deutsche Bank, Alex Brown, etc., Defendant–Respondent.

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DRAGON HEAD LLC, Plaintiff–Appellant, v. Steven Munro ELKMAN, et al., Defendants, Deutsche Bank, Alex Brown, etc., Defendant–Respondent.

Decided: January 22, 2013

FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, ROMÁN, CLARK, JJ. Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for appellant. Murphy & McGonigle, P.C., New York (Theodore R. Snyder of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 14, 2012, which granted defendant Deutsche Bank, Alex Brown, a Division of Deutsche Bank Securities, Inc.'s motion to dismiss the complaint as against it, and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.

Plaintiff's allegations against Deutsche Bank are not entitled to be deemed true, since they consist of bare legal conclusions and factual assertions that are flatly contradicted by the documentary evidence showing that Deutsche Bank was not a party to the written agreements at issue (see Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 [1st Dept 1999], affd 94 N.Y.2d 659 [2000] ). In support of its noncontractual causes of action, plaintiff does not sufficiently allege, nor do the evidentiary submissions show, that any relationship, contractual, fiduciary, or otherwise, existed between it and Deutsche Bank, or that Deutsche Bank possessed or exercised control over any of the property at issue (see e.g. Roslyn Union Free School Dist. v. Barkan, 16 NY3d 643, 653 [2011]; Colavito v. New York Organ Donor Network, Inc., 8 NY3d 43 [2006]; Bradkin v. Leverton, 26 N.Y.2d 192, 199 n4 [1970]; Georgia Malone & Co., Inc. v. Rieder, 86 AD3d 406, 408 [1st Dept 2011], affd 19 NY3d 511 [2012]; Kopelowitz & Co., Inc. v. Mann, 83 AD3d 793, 798 [2nd Dept 2011] ).

Plaintiff failed to submit a proposed amended pleading with his motion for leave to amend the complaint (see CPLR 3025[b] ).