Chester Color Separations, Inc. v. Trefoil Capital Corp.

—Order, Supreme Court, New York County (Myriam Altman, J.), entered November 3, 1993, which, inter alia, granted defendants’ motion to dismiss plaintiffs’ second cause of action for breach of fiduciary duty for failure to state a cause of action, unanimously affirmed, with costs. The parties’ debtor-creditor relationship was based upon arm’s length transactions, including the mortgaging of real property. Defendants never occupied the kind of position of 277 trust with plaintiffs that would create a fiduciary relationship between them (see, American Bank & Trust Co. v Lichtenstein, 48 AD2d 790, 791, affd 39 NY2d 857; Banque Nationale v 1567 Broadway Ownership Assocs., 214 AD2d 359). Therefore, the allegations, as pleaded in the complaint, failed to state a cause of action for breach of fiduciary duty. Concur — Ellerin, J. P., Rubin, Nardelli, Williams and Mazzarelli, JJ.