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Decided on August 24, 2006
Supreme Court, New York County

600391/2006
Karla Moskowitz, J.
This lawsuit arose from a management agreement between the plaintiff, Peter Dimsey ("Dimsey"), and his bank, The Bank of New York ("BNY"), the defendant. The agreement was for BNY to act in a discretionary capacity while selling certain of Dimsey's shares at a target price within a specific time frame. Dimsey contends that the bank failed to follow the terms of their agreement, resulting in his financial detriment. Dimsey sued BNY for breach of contract, breach of fiduciary duty, negligence and gross negligence.
By this motion (sequence number 001), BNY moves pursuant to CPLR 3211 (a)(7) to dismiss Dimsey's (1) second cause of action for breach of fiduciary duty, (2) third cause of action for negligence and (3) fourth cause of action for gross negligence. BNY also moves to dismiss that portion of Dimsey's complaint seeking punitive damages. The first cause of action for breach of contract is not at issue in this motion. At oral argument on June 8, 2006, the court dismissed that part of plaintiff's complaint seeking punitive damages. (See Transcript, p 14).
FACTS
The court derives the following facts from the complaint.
On June 4, 2004, Dimsey opened an investment account with BNY. (Complaint,

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