Universal Entertainment Events Inc. et al v. Classic Air Charter Inc. et al

Filing 67

ORDER denying 51 Motion to Dismiss for Failure to State a Claim. SO ORDERED that the Moving Defts motion to dismiss Count II (aiding and abetting claim against Moss and Classic Air), Count III (breach of contract claim against Classic Air), and Count IV (unjust enrichment claim against Moss), of the amended complaint is denied in its entirety. CM to pro se deft. Ordered by Judge Sandra J. Feuerstein on 3/8/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
UNIVERSAL ENTERTAINMENT EVENTS,
INC. and LORENZO REYES RETANA,

FILED 
CLERK 

3/8/2016 10:14 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
-against-

ORDER
15-CV-1104 (SJF) (AKT)

CLASSIC AIR CHARTER, INC., JAVELIN
AIR SERVICES LLC, DONALD MOSS and
JAMES BARTIKOSKI,
Defendants.
----------------------------------------------------------X 
FEUERSTEIN, J.
Plaintiffs, Universal Entertainment Events, Inc. (“Universal”) and Lorenzo Reyes Retana
(“Retana,” and with Universal, “Plaintiffs”), commenced an action alleging, inter alia, breach of
contract against defendants Classic Air Charter, Inc. (“Classic Air”), Donald Moss (“Moss,” and
with Classic Air, the “Moving Defendants”), Javelin Air Services LLC (“Javelin Air”), and
James Bartikoski (“Bartikoski,” and with Javelin, the “Non-Moving Defendants,” and with the
Moving Defendants, “Defendants”). DE 1, Compl. The Moving Defendants have moved to
dismiss Counts II (aiding and abetting), III (breach of contract), and IV (unjust enrichment) of
the amended complaint against Classic Air and Moss. DE 51, Mot. to Dismiss. For the reasons
stated below, the motion to dismiss is denied in its entirety.

I.

BACKGROUND
A.

Factual Background1

Universal and its principal, Retana, arrange luxury travel accommodations for their
clients throughout the world. DE 27, Am. Compl., at ¶ 10. In early 2014, Retana organized a
trip to the 2014 World Cup in Brazil for two-hundred-and-forty (240) Universal clients. Id. at
¶¶ 3, 10. Plaintiffs were responsible for chartering for their clients a June 24, 2014 return flight
from Recife, Brazil to Guadalajara, Mexico (the “Flight”). Id. at ¶ 12. Plaintiffs contacted
Bartikoski, a broker for charter flights, who introduced Plaintiffs to Moss, a “principal/agent” of
Classic Air, and “explained that he (Bartikoski) would be working with Moss and Classic Air to
arrange the Flight.” Id. at ¶¶ 6, 14. “Bartikoski has acted both individually and as an agent of
Classic Air and Javelin [Air],” and “Moss, Bartikoski, and their respective entities acted as
and/or represented themselves to Plaintiffs as related parties, partners, and/or agents of one
another.” Id. at ¶¶ 16-17. Defendants “communicated with Plaintiff[s] interchangeably
throughout their business dealings,” and “[n]umerous communications from Moss and/or Classic
[Air] to Plaintiffs . . . were conveyed through Bartikoski,” and vice-versa. Id. at ¶¶ 19-21.
Defendants later told Plaintiffs that “Defendants would subcontract the necessary plane [for the
Flight] from a reputable, third-party charter company called Dynamic Air Charter, LLC
[“Dynamic Air”].” Id. at ¶ 23.
During the first week of June 2014, Plaintiffs entered into a contract with Classic Air for
a chartered plane for June 24, 2014 at a price of three-hundred-and-five-thousand-and-two                                                            
1
As is required on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court
accepts all factual allegations in the amended complaint as true and draws all reasonable inferences in
Plaintiffs’ favor. Wendell Bail Bonding Co. No. 0811 v. Cuomo, No. 10-cv-4022, 2011 WL 5546929, at
*1 (E.D.N.Y. Nov. 10, 2011). The factual allegations do not constitute findings of fact by this Court.
Pompey v. Imagistics Pitney Bowes Office Sys., No. 04-cv-3923, 2005 WL 1320153, at *1 n.1 (E.D.N.Y.
May 26, 2005).

2

hundred dollars ($305,200) (the “Charter Agreement”). Id. at ¶ 25; see DE 27-1, Ex. A, Charter
Ag. Paragraph 7(d) of the Charter Agreement provides that:
[Classic Air] shall not be responsible or liable for the failure or delay of the
charter resulting form [sic] governmental or airport laws, regulations, acts of God,
injury, illness, strike, lockouts, riots, civil disobedience, national emergencies,
unavailability of fuel, weather, mechanical breakdown, or any other event beyond
Charter’s [sic] reasonable control. [Reyes] shall also have no liability for
consequential or incidental damages of any nature, kind or description: [Classic
Air’s] and [Reyes’s] right to damages for any breach of the terms of this
Agreement is, in any event, expressly limited to recovery of damages in an
amount not to exceed the amount of the Chater [sic] Fee.
DE 27-1, Ex. A, Charter Ag. at ¶ 7(d). Pursuant to the terms of the Charter Agreement, Plaintiffs
were required to make: (i) a fifty-thousand dollar ($50,000) deposit upon execution of the
Charter Agreement; and (ii) a second payment of two-hundred-fifty-five-thousand-and-twohundred dollars ($255,200) by June 15, 2014. Id. at ¶ 26. Although the Charter Agreement
specified that Plaintiffs’ payments must be made to Classic Air’s bank account, “Defendants, in
an email from Bartikoski, instructed Plaintiffs to make the initial $50,000 deposit to a bank
account belonging to ‘Go-Dair, LLC’ and, on information and belief, controlled by Bartikoski.”
DE 27, Am. Compl., at ¶ 27. Plaintiffs made their fifty-thousand dollar ($50,000) deposit by
check to Go-Dair, LLC on June 3, 2014, when the Charter Agreement was executed. Id. at ¶ 28;
see DE 27-1, Ex. A, Charter Ag., at 3. The check was deposited. DE 27, Am. Compl., at ¶ 28.
The Moving Defendants emailed Dynamic Air, advising them that the Charter Agreement
had been signed, and that thirty-thousand dollars ($30,000) of Plaintiffs’ fifty-thousand dollar
($50,000) deposit would be forwarded to Dynamic Air. Id. at ¶ 29. In a June 3, 2014 email to
Dynamic Air, the Moving Defendants requested “‘a letter that states permits have been requested
and should be approved without any issues by ANAC [Brazil’s aviation regulatory agency].

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That will allow the group [Plaintiffs] to release funds. I can provide letter [sic] but it would be
batter [sic] from carrier.’” Id. at ¶ 30.
On June 9, 2014, the Non-Moving Defendants sent Plaintiffs an email attaching a letter
(the “Dynamic Letter”), allegedly from “Brian Johnson” of Dynamic Air, that stated that “formal
requests had been made to the National Civil Aviation of Brazil (‘ANAC’) for a departure slot
and to Mexico Civil Air for necessary approval for the Flight, and that Dynamic [Air] did ‘not
anticipate any issues and expect approval on a timely basis.’” Id. at ¶ 31.
On June 18, 2014, following receipt of the Dynamic Letter and after the deadline for
submitting the second payment pursuant to the Charter Agreement, Plaintiffs made a partial
second payment of two-hundred-fifty-five-thousand dollars ($255,000) to Go-Dair, LLC. Id. at
¶¶ 34-35. The wire transfer payment was unsuccessful, because the bank account was held in the
different name of “James Bartikoski DBA Pilot Services LLC.” Id. at ¶ 36. On June 19, 2014,
the Non-Moving Defendants forwarded to Plaintiffs an email from the Moving Defendants
requesting the names of the customers for the Flight. Id. at ¶ 37. On June 23, 2014, Plaintiffs
transferred the full two-hundred-fifty-five-thousand-and-two-hundred dollars ($255,200) to
Defendants, and the payment was accepted the same day. Id. at ¶¶ 38-39. Plaintiffs also
“received oral and written assurances that the [F]light would be arranged.” Id. at ¶ 40.
On June 24, 2014, the date of the Flight’s scheduled departure, Defendants informed
Plaintiffs that “they were unable to charter a plane for Plaintiffs.” Id. at ¶ 41. As a result,
Plaintiffs had to “find and purchase numerous, alternative methods of transportation from Brazil
to Mexico for their [two-hundred-and-forty] 240 stranded passengers, during the finale of the
2014 World Cup” and accumulated expenses and costs exceeding seventy-five-thousand dollars
($75,000). Id. at ¶¶ 42-43.

4

In August 2014, Retana spoke with Thomas Johnson, the Vice President of Dynamic Air
and father of Brian Johnson. Id. at ¶ 33. According to Plaintiffs, Thomas Johnson informed
Retana that the June 9, 2014 Dynamic Letter was “not genuine,” “was not issued or authorized
by Dynamic [Air], was not sent or signed by Brian Johnson and did not bear the correct
letterhead of Dynamic [Air].” Id.  
Defendants ultimately returned one-hundred-ninety-thousand dollars ($190,000) of the
three-hundred-and-five-thousand-and-two-hundred dollar ($305,200) contractual fee to
Plaintiffs. Id. at ¶ 44. “Despite repeated requests, Defendants [have refused] to return the
remaining balance” of one-hundred-fifteen-thousand-and-two-hundred dollars ($115,200) to
Plaintiffs. Id. at ¶ 45.
B.

Procedural History

On March 3, 2015, Plaintiffs filed an action in this Court seeking damages arising out of
the incident described above. DE 1, Compl. On June 1, 2015, Plaintiffs filed an amended
complaint raising four (4) causes of action:





Count I: fraud against the Non-Moving Defendants;
Count II: aiding and abetting the Non-Moving Defendants’ fraud against the
Moving Defendants;
Count III: breach of contract against Classic Air; and
Count IV: unjust enrichment against Moss, Bartikoski, and Javelin Air.

DE 27, Am. Compl., at 9-11. On August 28, 2015, the Moving Defendants moved to dismiss
Count II against the Moving Defendants, Count III against Classic Air, and Count IV against
Moss. DE 51, Mot. to Dismiss.

5

II.

DISCUSSION
A.

Standard of Review

A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6)
should be granted if “it appears beyond a doubt that plaintiff can prove no set of facts in support
of his claim that would entitle him to relief.” Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.
1998). The Court must liberally construe the claims, accept all factual allegations in the
complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Koppel v.
4987 Corp., 167 F.3d 125, 128 (2d Cir.1999). The Court's task “is merely to assess the legal
feasibility of the complaint, not to assay the weight of the evidence which might be offered in
support thereof.” Levitt v. Bear Stearns & Co., 340 F.3d 94, 101 (2d Cir. 2003). The issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
support the claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
In deciding the motion to dismiss, the Court may consider documents referred to in the
complaint, documents that the plaintiff relied upon in bringing suit and that are either in the
plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial
notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
B.

Breach of Contract Claim

“To make out a viable claim for breach of contract a ‘complaint need only allege (1) the
existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach
of contract by the defendant, and (4) damages.’” Eternity Global Master Fund Ltd. v. Morgan
Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (quoting Harsco Corp. v. Segui, 91
F.3d 337, 348 (2d Cir. 1996)). Despite not delivering a chartered plane to Plaintiffs as required
by the Charter Agreement, the Moving Defendants argue that Classic Air did not breach the

6

parties’ contract. DE 51-2, Mem. of Law in Support of Mot. to Dismiss (“Moving Defs.’ Op.
Br.”), at 22. The Moving Defendants contend that Classic Air’s contractual non-performance
was excused by paragraph 7(d) of the Charter Agreement that provides that:
[Classic Air] shall not be responsible or liable for the failure or delay of the
charter resulting form [sic] governmental or airport laws, regulations, acts of God,
injury, illness, strike, lockouts, riots, civil disobedience, national emergencies,
unavailability of fuel, weather, mechanical breakdown, or any other event beyond
Charter’s [sic] reasonable control.
DE 27-1, Ex. A, Charter Ag., at ¶ 7(d). They contend that because Plaintiffs “admit that Classic
Air was ‘unable to charter a plane for Plaintiffs’” in the amended complaint, Classic Air was
excused from its obligation to perform pursuant to paragraph 7(d). DE 51-2, Moving Defs.’ Op.
Br., at 22 (quoting paragraph 41 of the amended complaint). The argument misconstrues the
language in the amended complaint and is, in any event, without merit.
Paragraph 41 of the amended complaint states, in its entirety: “On June 24, 2014, the day
the Flight was scheduled to depart from Brazil, Defendants abruptly informed Plaintiffs that they
were unable to charter a plane for Plaintiffs.” DE 27, Am. Compl., at ¶ 41. The language cannot
be reasonably interpreted to mean that Plaintiffs “admit[]” that Classic Air was “unable” to
charter a plane, or that Classic Air’s alleged inability to charter a plane, absent additional facts,
falls within the scope of paragraph 7(d).
Plaintiffs have pleaded factual allegations showing that: 1) the parties signed and
executed the enforceable Charter Agreement; 2) Plaintiffs paid the full three-hundred-and-fivethousand-and-two-hundred dollar ($305,200.00) contractual fee to Defendants as the Charter
Agreement required; 3) Classic Air did not deliver a chartered plane to Plaintiffs on June 24,
2014; and 4) as a result, Plaintiffs incurred damages by paying for replacement flights for their
clients and by not being fully refunded for their three-hundred-and-five-thousand-and-two-

7

hundred dollar ($305,200.00) fee.2 Plaintiffs have pleaded a breach of contract claim, and the
Moving Defendants’ motion to dismiss Count III (breach of contract) of the amended complaint
is denied.
C.

Aiding and Abetting Claim

Plaintiffs allege that the Moving Defendants aided and abetted the Non-Moving
Defendants’ commission of fraud, or the delivery of the allegedly fraudulent Dynamic Letter to
Plaintiffs. DE 27, Am. Compl., at ¶¶ 53-56. The Moving Defendants argue: 1) Plaintiffs have
not adequately pleaded an underlying claim of fraud against the Non-Moving Defendants; 2)
Plaintiffs have not pleaded an aiding and abetting fraud claim against the Moving Defendants;
and 3) the aiding and abetting claim duplicates the breach of contract claim, and the aiding and
abetting claim against Classic Air (but not Moss) must be dismissed as a matter of law. DE 51-2,
Moving Defs.’ Op. Br., at 11-20.
1.

Underlying Fraud Claim against the Non-Moving Defendants

Based upon the factual allegations in the amended complaint, Plaintiffs have adequately
pleaded a fraud claim against the Non-Moving Defendants. “Under New York law, a claim of
fraud consists of five [5] elements: ‘(1) a material misrepresentation or omission of fact; (2)
made by defendant with knowledge of its falsity; (3) with intent to defraud; (4) reasonable
reliance on the part of plaintiff; and (5) resulting damage to the plaintiff.” United Merchandise
Wholesale, Inc. v. IFFCO, Inc., 51 F. Supp. 3d 249, 267 (E.D.N.Y. 2014) (quoting Crigger v.
Fahnestock & Co., 443 F.3d 230, 234 (2d Cir. 2006)).

2
The Moving Defendants also argue in their Reply Memorandum of Law that Classic Air did not breach
the Charter Agreement because Plaintiffs did not identify the specific contractual provision that Classic
Air allegedly violated. DE 51-4, Reply Mem. of Law (“Moving Defs.’ Reply Br.”), at 16. The Moving
Defendants failed to raise the argument in their Memorandum of Law in Support of their Motion to
Dismiss, and therefore the argument is not considered at this stage of the judicial proceedings.

8

Plaintiffs have alleged that the Dynamic Letter was a fraudulent letter not drafted by
either Dynamic or any of its principals. See DE 27, Am. Compl., at ¶ 33. Thomas Johnson, the
Vice President of Dynamic, informed Plaintiffs that the Dynamic Letter was fraudulent, because
it was “not issued or authorized by Dynamic, was not sent or signed by Brian Johnson [of
Dynamic] and did not bear the correct letterhead of Dynamic.” Id. However, the Non-Moving
Defendants claimed that the Dynamic Letter was genuine, was signed by Brian Johnson of
Dynamic, and indicated that the necessary regulatory approvals for operating the Flight were
forthcoming. Id. at ¶ 31. Upon receipt of the Dynamic Letter, Plaintiffs reasonably relied upon
the Dynamic Letter’s representations that the Flight would proceed as scheduled and wire
transferred an additional two-hundred-fifty-five-thousand-and-two-hundred dollar ($255,200)
payment to Defendants. Id. at ¶¶ 34-39. When the Flight was later cancelled, Plaintiffs incurred
over seventy-five thousand dollars ($75,000) in damages in securing last-minute, replacement
flights for its two-hundred-and-forty (240) customers. Therefore, Plaintiffs have adequately
pleaded a claim of fraud against the Non-Moving Defendants.
In addition, Plaintiffs must plead their fraud claim with particularity pursuant to Rule
9(b)’s heightened pleading standard. Fed. R. Civ. P. 9(b); see United Merchandise Wholesale,
Inc., 51 F. Supp. 3d at 268. Rule 9(b) states that “[i]n alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P.
9(b). To “state a claim with the required particularity, a complaint must: (1) specify the
statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were fraudulent.” Id. at
268 (quoting Stevelman v. Alias Research Inc., 174 F.3d 79, 84 (2d Cir. 1999)). Concerning

9

Rule 9(b)'s “conditions of a person's mind” requirement, a plaintiff “must allege facts that give
rise to a strong inference of fraudulent intent.” Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52 (2d
Cir. 1995). A strong inference of fraud “may be established either (a) by alleging facts to show
that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that
constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v.
Citytrust Bancorp, 25 F.3d 1124, 1128 (2d Cir. 1994), superseded by statute on other grounds,
as stated in In re Paracelsus Corp. Sec. Litig., 61 F. Supp. 2d 591, 595 (S.D. Tex. 1998)
(pointing out that the Shields standard for an inference of fraudulent intent was superseded as to
private securities litigation).
Plaintiffs have alleged facts establishing that, on June 9, 2014, the Non-Moving
Defendants sent the allegedly fraudulent Dynamic Letter to Plaintiffs. See DE 27, Am. Compl.,
at ¶¶ 31-33. The facts “give rise to a strong inference of fraudulent intent” of the Non-Moving
Defendants to induce Plaintiffs to make a second payment of two-hundred-fifty-five-thousandand-two-hundred dollars ($255,200) to Defendants. See Acito, 47 F.3d at 52. The Non-Moving
Defendants had both “motive and opportunity” to send the Dynamic Letter, and there is “strong
circumstantial evidence” of their “conscious misbehavior.” Shields, 25 F.3d at 1128. Plaintiffs
have therefore sufficiently pleaded fraud against the Non-Moving Defendants pursuant to both
Rule 12(b)(6) and Rule 9(b). See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.
1993).
2.

Aiding and Abetting Claim against the Moving Defendants

Plaintiffs have also pleaded an aiding and abetting claim against the Moving Defendants
that survives Rule 9(b)’s heightened pleading standard. To establish a claim of aiding and
abetting fraud, a plaintiff must allege: 1) the existence of a violation by the primary wrongdoer;

10

2) knowledge of this violation by the aider and abettor; and 3) proof that the aider and abettor
substantially assisted in the primary wrong. Armstrong v. McAlpin, 699 F.2d 79, 91 (2d Cir.
1983); see JP Morgan Chase Bank v. Winnick, 406 F. Supp. 2d 247, 252 (S.D.N.Y. 2005). The
plaintiff must establish that the aider and abettor had “actual knowledge” of the alleged
wrongdoing. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006); see Wight v.
BankAmerica Corp., 219 F.3d 79, 91 (2d Cir. 2000) (observing that “knowledge of the
underlying wrong” is a “required element” pursuant to New York law). Rule 9(b) requires a
plaintiff to allege facts that, among other things, give rise to a strong inference that the defendant
had actual knowledge of the alleged fraud. “Substantial assistance” exists where: “(1) a
defendant affirmatively assists, helps conceal, or by virtue of failing to act when required to do
so enables the fraud to proceed; and (2) the actions of the aider/abettor proximately caused the
harm on which the primary liability is predicated.” Rosner v. Bank of China, No. 06-cv-13562,
2008 WL 5416380, at *5 (S.D.N.Y. Dec. 18, 2008).
Plaintiffs have alleged that: (i) Bartikoski “acted both individually and as an agent of
Classic Air and Javelin,” DE 27, Am. Compl., at ¶ 16; (ii) “Moss, Bartikoski, and their
respective entities acted as and/or represented themselves to Plaintiffs as related parties, partners,
and/or agents of one another;” id. at ¶ 17; (iii) “Plaintiffs entered into the Charter Agreement
with Moss, through Classic Air, but were instructed to make payments to Bartikoski,” id. at ¶ 18;
(iv) “[n]umerous communications from Moss and/or Classic [Air] to Plaintiffs . . . were
conveyed through Bartikoski,” and vice-versa, id. at ¶¶ 20-21; (v) after Bartikoski instructed
Plaintiffs to make the first fifty-thousand dollar ($50,000) payment to a bank account purportedly
controlled by Bartikoski, the Moving Defendants informed Dynamic that the Charter Agreement
had been signed and that a portion of the deposit would be forwarded to Dynamic, id. at ¶¶ 27,

11

29; (vi) less than one (1) week after the Moving Defendants requested a letter from Dynamic
regarding regulatory permits and approvals, the Non-Moving Defendants sent a substantively
similar letter to Plaintiffs, id. at ¶¶ 30-31; and (vii) after Plaintiffs made their second payment to
a bank account purportedly controlled by Bartikoski, the Moving Defendants and Non-Moving
Defendants represented to Plaintiffs that the Flight would proceed as planned, id. at ¶¶ 34-40.
Those factual allegations give rise to a strong inference that the Moving Defendants and
Non-Moving Defendants acted either in a principal-agent relationship or otherwise in a close
relationship, and that the Moving Defendants had actual knowledge of, and substantially assisted
in, the Non-Moving Defendants’ alleged fraud against Plaintiffs. The amended complaint
contains specific factual allegations that six (6) days after the Moving Defendants requested a
letter from Dynamic, the Non-Moving Defendants sent the substantively similar letter, the
allegedly fraudulent Dynamic Letter, to Plaintiffs. Moreover, although Plaintiffs made their
payments to Bartikoski, performance was required from the Moving Defendants. It can be
“strongly inferred” from the allegations that the Moving Defendants and Non-Moving
Defendants share knowledge and information, and that they “communicated with Plaintiff[s]
interchangeably throughout their business dealings.” DE 27, Am. Compl., at ¶ 19. Although the
precise relationship between the Moving Defendants and Non-Moving Defendants is as yet
unclear, that is one of the purposes of discovery. Therefore, Plaintiffs have presented facts that
“strongly infer” that the Non-Moving Defendants engaged in fraudulent misconduct against
Plaintiffs; the Moving Defendants had actual knowledge of the Non-Moving Defendants’ alleged
fraud; and the Moving Defendants substantially assisted the Non-Moving Defendants in the
fraud. As a result, Plaintiffs have alleged an aiding and abetting claim against the Moving
Defendants that meets Rule 9(b)’s heightened pleading standard.

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3.

Aiding and Abetting Claim does not Duplicate Breach of Contract Claim

The Moving Defendants also allege that the aiding and abetting claim against Classic Air,
but not Moss, must be dismissed pursuant to Rule 12(b)(6), because it duplicates Plaintiffs’
breach of contract claim against Classic Air. DE 51-2, Moving Defs.’ Op. Br., at 15. “Under
New York law, a cause of action sounding in fraud cannot be maintained when the only fraud
charged relates to a breach of contract.” Ellington Credit Fund, Ltd. v. Select Portfolio
Servicing, Inc., 837, F. Supp. 2d 162, 197 (S.D.N.Y. 2011). However, there are three (3)
exceptions where fraud and aiding and abetting claims may be pleaded in conjunction with a
breach of contract claim. “[I]n such a situation, a plaintiff must either: (i) demonstrate a legal
duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent
misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are
caused by the misrepresentation and unrecoverable as contract damages.” Bridgestone/Firestone
v. Recovery Credit Servs., Inc., 98 F.3d 1, 20 (2d Cir. 1996). Pursuant to the first exception, the
plaintiff must “show a legal duty separate from the duty to perform under the contract,” such as a
“fiduciary relationship between the parties.” Sony Music Entm’t Inc. v. Robison, No. 01-cv6415, 2002 WL 272406, at *2 (S.D.N.Y. Feb. 26, 2002), reconsideration granted on other
grounds, 2002 WL 550967 (S.D.N.Y. Apr. 11, 2002). Pursuant to the second exception, the
plaintiff must raise factual allegations “collateral and extraneous” to the express terms of the
contract. Id. Claims of fraud “can be supported by a false statement of present fact, or by a false
statement of future intent which concerns a matter collateral to a contract between the parties.”
Id. (quoting Ohio Players, Inc. v. Polygram Records, Inc., No. 99-cv-33, 2000 WL 1616999, at
*2 (S.D.N.Y. Oct. 29, 2000)). A promise consistent with the express terms of a contract cannot
constitute fraud. Id. (citing John Paul Mitchell Sys. v. Quality King Distributors, No. 99-cv-

13

9905, 2001 WL 910405, at *5 (S.D.N.Y. Aug. 13, 2001)). Pursuant to the third exception, the
plaintiff must allege special damages that are “unrecoverable as contract damages” and that are
the proximate result of the defendant’s fraudulent misrepresentations. DynCorp v. GTE Corp.,
215 F. Supp. 2d 308, 327 (S.D.N.Y. 2002). The special damages also “must reasonably be
anticipated at the time the contract was made.” Id. (citing Bibeault v. Advanced Health Corp.,
No. 97-cv-6026, 2002 WL 24305, at *6 (S.D.N.Y. Jan. 8, 2002)). Special damages are
“specially required expenses intended to eliminate a condition which the contracting party had
promised either to eliminate or not to bring about.” Id.
In the absence of a fiduciary relationship between Plaintiffs and the Moving Defendants,
the first exception cannot be satisfied. However, Plaintiffs have met the second exception by
alleging that the Non-Moving Defendants made false representations to Plaintiffs through the
Dynamic Letter. DE 27, Am. Compl., at ¶ 31; DE 51-3, Pls.’ Mem. of Law in Opp’n to Mot. to
Dismiss (“Pl.’s Ans. Br.”), at 11. Promises to secure all required governmental permits and
approvals in advance of the Flight, and that such permits and approvals would be obtained in a
timely manner, as stated in the Dynamic Letter, are not express terms of the Charter Agreement.
The Non-Moving Defendants’ promises of regulatory approvals are extraneous to the terms of
the Charter Agreement between Plaintiffs and Classic Air and do not duplicate the breach of
contract claim against Classic Air.
Plaintiffs have also alleged special damages that preclude their aiding and abetting claim
from being subsumed within their breach of contract claim. DE 51-3, Pls.’ Ans. Br., at 12.
Plaintiffs have raised factual allegations that they suffered substantial damages exceeding the
contractual fee of three-hundred-and-five-thousand-and-two-hundred-dollars ($305,200.00),
based upon their payment for the cost of replacement flights for their clients. DE 27, Am.

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Compl., at ¶¶ 41-43. Paragraph 7(d) of the Charter Agreement expressly precludes recovery for
consequential damages, which would constitute special damages recoverable in an aiding and
abetting claim. See DE 27-1, Ex. A, Charter Ag., at ¶ 7(d). Thus, Plaintiffs have established that
their aiding and abetting claim against Classic Air is not duplicative of their breach of contract
claim against the same defendant. As a result, the Moving Defendants’ motion to dismiss Count
II (aiding and abetting) pursuant to Rule 12(b)(6) for failure to state a claim, and Rule 9(b) for
failure to plead the claim with particularity, is denied.
D.

Unjust Enrichment Claim

“To prevail on a claim for unjust enrichment in New York, a plaintiff must establish (1)
that the defendant benefited; (2) at the plaintiff's expense; and (3) that equity and good
conscience require restitution.” Beth Israel Medical Center v. Horizon Blue Cross and Blue
Shield of New Jersey, Inc., 448 F.3d 573, 586 (2d Cir. 2006). “The ‘essence’ of such a claim ‘is
that one party has received money or a benefit at the expense of another.’” Kaye v. Grossman,
202 F.3d 611, 616 (2d Cir. 2000) (quoting City of Syracuse v. R.A.C. Holding, Inc., 258 A.D.2d
905, 685 N.Y.S.2d 381, 381 (App. Div. 4th Dep't. 1999)). However, the existence of an
enforceable written contract precludes recovery for unjust enrichment. See Mid-Hudson Catskill
Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005); ClarkFitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190
(1987). Although a plaintiff “can plead in the alternative such that he can challenge the validity
of [a] contract and allege unjust enrichment” pursuant to Federal Rule of Civil Procedure 8(d)
(“Rule 8(d)”),3 the plaintiff cannot plead unjust enrichment in the alternative if he “fails to

3
Rule 8(d)(2) and (3) provide that: “(2) . . . A party may set out [two] 2 or more statements of a claim or
defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party
makes alternative statements, the pleading is sufficient if any one of them is sufficient. . . . (3) . . . A

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challenge the validity of [the] contract . . . , and instead alleges breach of said otherwise
enforceable contract.” Kamdem-Ouaffo v. PepsiCo, Inc., No. 14-cv-227, 2015 WL 1011816, at
*13 (S.D.N.Y. Mar. 9, 2015).
The Moving Defendants argue that Plaintiffs’ unjust enrichment claim cannot be
sustained in the presence of a valid, enforceable Charter Agreement. DE 51-2, Moving Defs.’
Op. Br., at 23. Plaintiffs respond that they are entitled to plead legal claims in the alternative
pursuant to Rule 8(d), and that as the unjust enrichment claim is raised against only Moss, and
not Classic Air, the claim may be pleaded in conjunction with the breach of contract claim
against Classic Air. DE 51-3, Pls.’ Ans. Br., at 17.
Both parties are correct. As neither party disputes the enforceability of the Charter
Agreement, Plaintiffs cannot plead in the alternative an unjust enrichment claim against Classic
Air pursuant to Rule 8(d). However, Plaintiffs have not done so; they have raised their unjust
enrichment claim against Moss, who is not a party to the Charter Agreement. See DE 27, Am.
Compl., at 11; DE 27-1, Ex. A, at 3. The Moving Defendants have not contended that Moss
failed to benefit from the contract, or that Plaintiffs have not sufficiently pleaded the elements of
an unjust enrichment claim. See Beth Israel Medical Center v. Horizon Blue Cross and Blue
Shield of New Jersey, Inc., 448 F.3d 573, 586 (2d Cir. 2006). The Moving Defendants’ motion
to dismiss Count IV (unjust enrichment) against Moss is denied.
III.

CONCLUSION
For the reasons stated above, the Moving Defendants’ motion to dismiss Count II (aiding

and abetting claim against Moss and Classic Air), Count III (breach of contract claim against

party may state as many separate claims or defenses as it has, regardless of consistency.” Fed. R. Civ. P.
8(d)(2) and (3).

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Classic Air), and Count IV (unjust enrichment claim against Moss), of the amended complaint is
denied in its entirety.
SO ORDERED.
/s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: March 8, 2016
Central Islip, New York

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