In Internationale Nederlanden (U.S.) Capital Corp. v. Bankers Trust Co. (261 AD2d 117 1st Dept [1999]) one of the defendants, Bankers Trust Company ("Bankers Trust"), was the broker and holder of securities belonging to plaintiff "ING" pursuant to a written agreement, which contained an exculpatory clause. Pursuant to the clause, plaintiff "promised to 'indemnify you and hold you harmless from any and all loss, liability (excluding any liability occasioned by the gross negligence or willful misconduct of your employees . . .), claims, damages or expenses . . . arising from your performance of your services as Custodian, hereunder' " (id. at 120). ING made certain elections on ballots it submitted to Bankers Trust; however, the elections were not properly tabulated, ultimately resulting in an alleged loss of $ 5 million. The "essence of the complaint" was that the "defendants were negligent in completing and recording ING's master ballots, such that ING received a less valuable type of distribution than what they had selected" (id. at 118). When the defendants sought dismissal of the complaint under CPLR 3211, ING requested leave to replead, in the event that dismissal was granted. The Supreme Court granted dismissal of the gross negligence and breach of fiduciary duty claims against Bankers Trust, on the ground that ING did not allege any separate tortious breach of duty independent of a breach of the agreement. On appeal, the First Department noted: The motion court erred in granting defendants' motions, since plaintiffs' complaint contains factual allegations sufficient to support claims against Bankers Trust Company . . . . Having determined that ING's tort claims against Bankers Trust Company were actually breach of contract claims, the court should have granted ING's request for leave to replead. (Id. at 121) The First Department then confirmed that the "motion court properly deemed plaintiffs' cause of action against Bankers Trust Company to sound in contract, not tort . . ." since the duty to follow ING's instruction with respect to the disposition of the U-4 Notes arose out of the Custodian Account Agreement (id at 122). The First Department then explained, however, that the Supreme Court did not address "whether the alleged errors by Bankers Trust Company in filling out and sending the Master Ballot could constitute gross negligence" presumably, under the Custodian Account Agreement's exculpatory clause. The Court continued: Though some of the errors seem to concern mere formalistic details, this was an election in which minor errors of form could have drastic consequences . . . . Bankers Trust Company was well aware that millions of dollars were at stake. Failure to keep accurate records has been considered evidence of gross negligence where the plaintiff relied on the defendant to protect its property interests and the defendant was aware that significant losses could result from inaccurate records . . . . ING's loss occurred because Bankers Trust Company failed to follow the instructions for completing the Master Ballot and then either failed to send it to co-defendant, or sent it too late for the fatal mistakes to be corrected . . . . Although the Master Ballot was never sent, or was too error-ridden to be counted . . ., Bankers Trust Company reassured ING that everything was in order, until it was too late for ING to do anything about it. Certainly the failure to send the Master Ballot at all, if proven, could be gross negligence. The essence of the agreement between ING and Bankers Trust Company was that ING relied on Bankers Trust Company to stand in ING's stead with respect to the U-4 Notes and to protect ING's rights, all of which Bankers Trust Company allegedly failed to do. (Id. at 122-123)