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AG CAPITAL v. STATE ST. BANK

5 N.Y.3d 582 (2005)

842 N.E.2d 471

808 N.Y.S.2d 573

AG CAPITAL FUNDING PARTNERS, L.P., et al., Plaintiffs, v. STATE STREET BANK AND TRUST COMPANY, Defendant and Third-Party Plaintiff-Appellant. SALOMON SMITH BARNEY INC. et al., Third-Party Defendants-Respondents.

Court of Appeals of the State of New York.

Decided November 17, 2005.

Attorney(s) appearing for the Case

Kelley Drye & Warren LLP, New York City (Steven P. Caley, John M. Callagy and Robert S. Friedman of counsel), for third-party defendant-appellant.

Cleary Gottlieb Steen & Hamilton LLP, New York City (Mitchell A. Lowenthal, David H. Herrington, Karen Bekker and David Lehn of counsel), for Salomon Smith Barney Inc., third-party defendant-respondent.

Allen & Overy LLP, New York City (Michael S. Feldberg, Jacob S. Pultman, Kelly A. Berkell, Karen Lee and Nicole K. Avallone of counsel), for Thelen Reid & Priest LLP, third-party defendant-respondent.

Covington & Burling, New York City (C. William Phillips, Jonathan M. Sperling and Stephanie Yu of counsel), for UBS Warburg LLC, third-party defendant-respondent.

Kasowitz, Benson, Torres & Friedman LLP, New York City (James J. Stricker, Ronald R. Rossi and Matthew R. DiBlasi of counsel), for plaintiffs.

Before: Chief Judge KAYE and Judges ROSENBLATT, GRAFFEO and READ concur with Judge CIPARICK; Judge R.S. SMITH dissents in part in a separate opinion in which Judge G.B. SMITH concurs.

OPINION OF THE COURT

CIPARICK, J.

Because an underwriter or issuer of securities can, by statements and acts interpreted in light of industry custom and practice, assume a duty that may be imposed upon a secured party representative or indenture trustee, and because such allegations are adequately pleaded in a third-party complaint and supplemental documentary evidence, we reinstate causes of action for negligence...

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