ALARMEX HOLDINGS, LLC, plf-ap, v. JP MORGAN CHASE BANK, N.A., def-res

3011. ALARMEX HOLDINGS, LLC, plf-ap, v. JP MORGAN CHASE BANK, N.A., def-res — Feder Kaszovitz, LLP, New York (David Sack of counsel), for ap — Emmet, Marvin & Martin, LLP, New York (Tyler J. Kandel of counsel), for res — Order, Supreme Court, New York County (Robert Reed, J.), entered October 23, 2015, which granted defendant’s motion to dismiss the complaint as time-barred, unanimously affirmed, without costs.

Plaintiff seeks to recover certain funds that allegedly were wrongfully transferred from an escrow account maintained at a branch of defendant by Marc Dreier, the principal of Dreier LLP, before Dreier LLP filed for bankruptcy. Plaintiff does not dispute that its causes of action are time-barred under the applicable statutes of limitations; it argues that defendant’s active concealment of the illicit transfers equitably estops it from asserting a statute of limitations defense. However, the complaint fails to allege facts showing either that defendant had actual knowledge of the diversion of funds or reason to suspect that the funds were being misappropriated or that a fiduciary relationship existed between the parties that would give rise to a duty to disclose (see Gonik v. Israel Discount Bank of N.Y., 80 AD3d 437, 438 [1st Dept 2011]; Home Sav. of Am. v. Amoros, 233 AD2d 35, 38-39 [1st Dept 1997]). Indeed, the allegations show that Dreier LLP, as the escrow agent, was the fiduciary, and that defendant was merely the depositary bank at which Dreier LLP maintained the escrow account. Thus, defendant had no duty to monitor the subject escrow account “to safeguard the funds [therein] from fiduciary misappropriation” (Amoros, 233 AD2d at 38).