to the particular case.” Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 672 N.Y.S.2d 8, 14 (1st Dep’t 1998); accord Eurycleia Partners v. Seward & Kissel, LLP, 12 N.Y.3d 553, 561, 883 N.Y.S.2d 147, 910 N.E.2d 976 (2009); Abercrombie, 438 F.Supp.2d at 274. Therefore, “a claim alleging the existence of a fiduciary duty usually is not subject to dismissal under Rule 12(b)(6).” Abercrombie, 438 F.Supp.2d at 274. On a motion to dismiss, it is often “ ‘impossible to say that plaintiff will be unable to prove the existence of a fiduciary relationship.’ ” Am. Tissue, Inc. v. Donaldson, Lufkin & Jenrette Sec. Corp., 351 F.Supp.2d 79, 102 (S.D.N.Y.2004) (quoting Penato v. George, 52 A.D.2d 939, 383 N.Y.S.2d 900, 905 (2d Dep’t 1976)); see also Apple Records, Inc., 529 N.Y.S.2d at 283 (<HOLDING>). The Second Circuit has held that “the
recognizing the existence of the special relationship holding that the nonmovant must make a showing sufficient to establish the existence of an element essential to that partys case holding that the plaintiff presented sufficient evidence to establish an agency relationship for service to be effective holding that the failure to raise an issue in the opening brief waives the issue holding that while the contract did not establish a formal fiduciary relationship the pleadings were sufficient to raise an issue as to the existence of an informal one