Nosaj Entertainment et al. v. Tristate and Beyond, LLC et al

Filing 68

DECISION AND ORDER granting in part and denying in part 60 Motion for Summary Judgment For the foregoing reasons, it is hereby ORDERED that the motion for summary judgment (Dkt. No. 60) of Defendants Tristate and Beyond, LLC, Romulo Aromin, Jr., and Flordeliza Lantin is DENIED, in part, and GRANTED, in part. Specifically, the motion for summary judgment on Count One is DENIED, and the motion is GRANTED in all other respects. The Clerk of the Court is directed to terminate the motion for summary judgment entered at Docket No. 60. SO ORDERED. (Signed by Judge Victor Marrero on 9/24/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

9/24/2024

NOSAJ ENTERTAINMENT, et al.,

22 Civ. 10110 (VM)

Plaintiff,

DECISION AND ORDER

- against TRISTATE & BEYOND, LLC, et al.,
Defendants.
VICTOR MARRERO, United States District Judge.

Plaintiffs

NOSAJ

Entertainment

(“Nosaj”),

HP

Entertainment (“HP”), Pinoy Dream Productions, LLC (“Pinoy
Dream”),

and

Team

Guidotts

Production

(“Team

Guidotts”)

brought this action against Defendants Tristate and Beyond,
LLC

(“Tristate”),

Flordeliza
“Individual

Lantin

Romulo

Aromin

(“Lantin,”

Defendants”

and

Jr.

together

(“Aromin”),
with

collectively

Aromin,

with

and
the

Tristate,

“Defendants”). Plaintiffs seek a total of $472,000 in damages
arising from Defendants’ alleged cancellation of a concert
series featuring Filipino artists Defendants organized with
Plaintiffs. With respect to Tristate, Plaintiffs bring claims
for breach of contract (Count One), unjust enrichment (Count
Two), conversion (Count Three), and fraud (Count Four). With
respect to Lantin, Plaintiffs bring claims asserting fraud
(Count Four) and breach of fiduciary duty (Count Seven). With
respect to Aromin, Plaintiffs bring claims alleging fraud
1

(Count Four), unjust enrichment (Count Five), and conversion
(Count Six).
Now before the Court is Defendants’ Motion for Summary
Judgment (see Dkt. No. 60) on all of Plaintiffs’ claims
pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”).
For the reasons stated herein, Defendants’ motion is granted
in part and denied in part.
I.
A.

BACKGROUND

FACTUAL BACKGROUND 1

Tristate and Beyond, LLC is an event producer wholly
owned by LLC members Lantin and Aromin. Tristate specializes
in organizing events that showcase Filipino or FilipinoAmerican performers. In June 2021, NOSAJ, HP, Pinoy Dream,
The factual recitation is confined only to the facts in Defendants’
Local Rule 56.1 Statement of Undisputed Material Facts (see Dkt. No. 63
[herein “Defendant’s Rule 56.1 Statement” or “Def. SUMF”]), which is
supported by affidavits and exhibits. Unless specifically quoted or
otherwise cited as necessary, no other citation to the record will be
made.
1

Plaintiffs have not filed a Rule 56.1 counterstatement. Instead,
Plaintiffs include a statement of fact section in their Memorandum of Law
in Opposition to Defendant’s Motion for Summary Judgment (see Dkt. No. 64
[herein “Plaintiff’s Opposition” or “Pl.’s Opp.”) but have not otherwise
filed a “correspondingly numbered paragraph responding to each numbered
paragraph in the statement of the moving party.” S.D.N.Y. Local Rule
56.1(a). If the party opposing summary judgment fails to “specifically
convert[]” the moving party’s statement of material facts by [e]ach
numbered paragraph,” then the moving party’s facts “will be deemed
admitted for purposes of the motion.” Id.; See also T.Y. v. New York City.
Dept. of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (“A nonmoving party’s
failure to respond to a Rule 56.1 statement permits the court to conclude
that the facts asserted in the statement are uncontested and
admissible.”). The Court thus deems the properly supported facts set forth
in Defendant’s Rule 56.1 Statement as admitted. While the facts Defendants
assert are deemed undisputed, this Court must still be satisfied that the
evidence in the record supports those assertions. Vermont Teddy Bear Co.,
Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

2

and Team Guidotts (collectively, “Plaintiffs”) reached out to
Tristate to explore the idea of organizing a concert series
in the United States featuring prominent Filipino performers
(the “Concert Series”). On October 27, 2021, the parties
entered

into

three

separate

Booking

Agreements

(“Booking

Agreements”) for each planned concert location of the series.
(See Dkt. No. 63-2, [herein “Booking Agreements”].)
The Concert Series was titled “Mad About Love” and was
set to showcase two prominent Filipino performers: Morisette
Anon (“Anon”) and Sam Concepcion (“Concepcion,” and together
with Anon, the “Performers”).
Under the Booking Agreements, Tristate was responsible
for booking the Performers by entering into contracts with
their agents and for arranging travel to the United States
for the Performers and their respective staffs. Tristate’s
responsibilities

included

Citizenship

Immigration

and

working

with

Services

United

States

(“U.S.C.I.S.”)

to

acquire visas for the Performers. Meanwhile, Plaintiffs were
responsible for securing the venue in the United States for
the

concert

series

as

well

as

the

accommodations

and

transportation for the Performers and their teams.
All three Booking Agreements contained substantially
identical
specific

terms,

with

differences

accommodations.

Aromin
3

only

signed

in
each

location
agreement

and
on

behalf of Tristate while Lance Rayela — a representative from
Team Guidott — signed on behalf of Plaintiffs. Under the terms
of each agreement, Plaintiffs were to pay Tristate $34,000
for each performance, totaling $102,000, in accordance with
the following payment schedule: (1) an initial non-refundable
deposit (“Initial Deposit”) of $11,900 within three days of
executing the contract, (2) an additional payment of $11,900
within three days of the visas being issued, and (3) a final
payment of $10,200 to be paid upon the Performers’ arrival at
the concert location. The concerts were to be held on January
14, 15, and 16, 2022, in Houston, Texas; Dallas, Texas; and
Washington,

D.C.,

respectively.

(See

generally

Booking

Agreements.)
The terms of the agreement outlined when Plaintiffs
would

be

owed

a

refund

of

their

deposits,

along

with

additional expenses, if the Performers failed to appear for
their scheduled concerts. Specifically, Section 4.1.3 of the
Booking Agreements provided that if an artist failed to appear
and

perform

for

causes

other

than

(1)

force

majeure

or

fortuitous events, and (2) denial of visa, Tristate was
obligated to refund all deposits paid by Plaintiffs and to
reimburse

Plaintiffs

for

all

expenses

and

losses

they

incurred in promoting and arranging the event. (See Booking
Agreements at 8.) Conversely, Section 4.1.2 of the Booking
4

Agreements provided that if a concert was cancelled because
of COVID-related events or a Performer failing to obtain a
visa to travel to the United States, and the cause is not
attributable to Tristate, the concert would be postponed to
a mutually agreed upon date within one year from the original
date. Tristate was obligated to apply any payments made by
Plaintiffs to the rescheduled event. (See Booking Agreements
at 7-8.) Similarly, the Agreement contained a force majeure
provision

which

stated

that

if

the

concert

series

was

postponed due to force majeure, “including a pandemic or
COVID-related events,” beyond the control of both parties,
the event was to be rescheduled and Tristate was required to
apply any payments made by Plaintiffs to the rescheduled
event. (See Id.) Plaintiffs paid the three Initial Deposits
of $11,900, totaling $35,700, on November 15, November 18,
and November 22, 2021.
Several weeks after executing the Booking Agreements,
Tristate entered into an agreement with the agent for the
Performers, RankOne Productions, Inc. (“RankOne”), in which
Tristate agreed to pay RankOne $38,500 for the booking of the
Performers. (See Dkt. No. 63-7 [herein “RankOne Agreement”].)
In January 2022, representatives of
Anon informed Tristate that he had contracted COVID-19 and
provided a positive test. Under applicable regulations at the
5

time, if Anon traveled to the United States, he would be
forced to quarantine in the United States for a ten-day
period. As a result, Tristate informed Plaintiffs that the
concert event would have to be postponed. On February 3, 2022,
the

parties

entered

into

Amended/Rescheduled

Booking

Agreements (the “Amended Booking Agreements”), postponing the
concert series to February and March 2022. (See Dkt. No. 84.)
Meanwhile, Tristate retained the Law Offices of Gabriel
S.

Dela

Merced

(“Dela

Merced”)

for

legal

assistance

in

obtaining the necessary visas for the Performers. Tristate
paid Dela Merced a total of $16,289 for its services. Tristate
submitted

applications

and

obtained

approval

for

all

individuals scheduled to travel to the United States for the
concert series. (See Dkt. No. 63-5 [herein “Visa Application
Approvals”].)
Before

the

visas

could

be

issued,

however,

the

Performers and their staff had to be interviewed at the United
States Embassy in the Philippines (the “Embassy”). Because of
the COVID-19 pandemic and the Omicron variant, the Embassy
faced

significant

backlogs,

delays

in

processing

applications, and extended closures, which led to numerous
interview appointment cancellations. On February 7, 2022,
representatives of Tristate contacted
6

Plaintiffs to discuss

Tristate’s concerns that the Performers may not be able to
obtain interviews to travel in time for the concert series.
On

February

15,

2022,

Aromin

contacted

Jason

Purino

(“Purino”), the primary point of contact for plaintiffs,
notifying him that the visas were not yet issued and inquired
about rescheduling the concert series. On March 15, 2022,
Aromin sent a letter to Purino requesting to reschedule the
concert series but Purino refused. Instead, Purino demanded
that Tristate refund them the $35,700 deposit.
B.

PROCEDURAL HISTORY

Plaintiffs commenced this action on November 29, 2022.
(See Dkt. No. 1 [herein “Compl.”].) The parties exchanged
pre-motion letters seeking to dismiss the complaint and the
Court directed the parties to meet and confer on whether
dispositive motion practice could be avoided. (See Dkt. No.
20.) After the parties met, counsel for Defendants submitted
a letter notifying the Court that the parties could not reach
a resolution and that Defendants would move for summary
judgment in lieu of answering the Complaint. (See Dkt. No.
21.)
Shortly

thereafter,

the

parties

exchanged

limited

discovery, which is now concluded. (See Dkt. No. 47.) On
November 17, 2023, Defendants moved under Federal Rule of
Civil Procedure 56 (“Rule 56”) for summary judgment in lieu
7

of filing an answer or responding to Plaintiffs’ Complaint.
(See Dkt. No. 59.) The motion asks the Court to dismiss the
Complaint in its entirety. (See Dkt. No. 61 [herein “Def.’s
Mem.”].)

Plaintiffs

filed

their

Memorandum

of

Law

in

Opposition to Defendant’s Motion (“Plaintiffs’ Opposition”)
on December 14, 2023. (See Dkt. No. 64 [herein “Pl.’s Opp.”.)
Defendants filed their Reply Memorandum of Law (“Defendants’
Reply”) on January 12, 2024. (See Dkt. No. 66 [herein “Def.’s
Reply”].)
II.

LEGAL STANDARD

Rule 56 provides that the court “shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Under Rule 56,
the Court “must construe the facts in the light most favorable
to the non-moving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.” Kee v.
City of New York, 12 F.4th 150, 158 (2d Cir. 2021) (quoting
Lucente v. County of Suffolk, 980 F.3d 284, 296 (2d Cir.
2020)).

“The function of the district court in considering

the motion for summary judgment is not to resolve disputed
questions of fact but only to determine whether, as to any
material issue, a genuine factual dispute exists.” Id. at

8

166-67 (quoting Kaytor v. Elec. Boat. Corp., 609 F.3d 537,
545 (2d Cir. 2010)).
“The moving party bears the burden to demonstrate the
absence of any genuine issues of material fact.” New York v.
Mountain

Tobacco

Co.,

942

F.3d

536,

541

(2d

Cir.

2019)

(quoting Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166
(2d Cir. 2016)). “A fact is material if it ‘might affect the
outcome of the suit under the governing law.’” Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 13 F.4th 247,
259 (2d Cir. 2021) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact.” Anderson, 477 U.S. at 247–48 (1986).
Though a party opposing summary judgment “must provide
more

than

conclusory

allegations,”

Gorzynski

v.

JetBlue

Airways, Corp., 596 F.3d 93, 101 (2d Cir. 2010), summary
judgment is improper if any admissible evidence in the record
allows a reasonable inference to be drawn in favor of the
opposing party. See Kee, 12 F.4th at 158.

9

III. DISCUSSION
A.

BREACH OF CONTRACT

To establish a breach of contract under New York law, a
plaintiff

must

prove

the

following

elements:

(i)

the

existence of a contract; (ii) breach by the other party; and
(iii) damages suffered as a result of the breach. See Harsco
Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996). Summary
judgment is appropriate “[w]here the language of the contract
is unambiguous, and reasonable persons could not differ as to
its meaning.” Fulton Cogeneration Assocs. v. Niagara Mohawk
Power Corp., 84 F.3d 91, 98 (2d Cir. 1996).
Plaintiffs claim that Defendants breached their contract
by failing to secure the appearance of the Performers at the
Concert Series and not refunding Plaintiffs their Initial
Deposits.

Defendants

argue

that

summary

judgment

on

the

contract claim is appropriate because the evidence shows that
their obligation to refund Plaintiffs’ Initial Deposits was
excused by Sections 4.1.1 and 4.1.2 of the Booking Agreements
and that they complied with the contract by making efforts to
reschedule the performances. (See Def.'s Mem. at 12-14.)
Section 4.1.1 of the Booking Agreements states the
following:
In case the event is cancelled or otherwise prevented
for any cause not attributable to [Tristate], or as a
result of the Artist and Guest Artist not obtaining a US

10

entry visa or being denied entry due to COVID . . .
[Plaintiffs], in consultation with [Tristate], shall be
allowed to reschedule the event to another date within
one (1) year from the original date of the event. Any
amounts previously paid by [Plaintiffs] shall be applied
to these rescheduled events.
(Booking

Agreements

at

7-8)

(emphasis

added.)

Meanwhile,

Section 4.1.2 of the Agreement contains a force majeure
provision that states the following:
In case of postponement due to force majeure or
fortuitous events . . . including a pandemic or COVID
related events, beyond the control of both parties, the
event shall be reset to another date[.] Any amounts
previously paid by [Plaintiffs] shall be applied to
these rescheduled events.
(Id) (emphasis added.)
In their Opposition, Plaintiffs concede that the initial
cancellation

of

the

concert

series

due

to

Morisette

contracting COVID-19 was “reasonable.” (See Pl.’s Opp. at
13.) However, they argue that Defendants’ failure to refund
Plaintiffs

after

the

subsequent

cancellation

due

to

the

purported visa backlog constitutes a wrongful breach of the
Booking Agreements. (See Id.) The Court construes Plaintiffs’
concession to imply that their breach of contract claim stems
only from the second cancellation due to the purported visa
issue.
Plaintiffs argue that Defendants’ failure to secure
visa approvals for the Performers was not attributed to COVID-

11

19

backlogs,

but

because

Defendants

failed

to

submit

necessary paperwork to the Embassy for the visa approvals.
(See Pl.’s Opp. at 14.)

Under this theory, if Defendants

failed to complete the visa application, the cancellation
would be due to their own inaction, not a visa denial.
Consequently, Defendants would owe Plaintiffs a refund under
Section

4.1.3

of

the

Booking

Agreements/Amended

Booking

Agreements. (See Booking Agreements at 8.)
Specifically, Plaintiffs point out that Defendants have
failed

to

submit

evidence

that

they

filed

an

Online

Nonimmigrant Visa Application, Form DS-160 (“DS-160”.) Before
the Court addresses this allegation, a brief overview of the
visa application process is required. “A citizen of a foreign
country who wishes to work in the United States must first
get

the

right

Travel.State.Gov,

visa.”
U.S.

Temporary

Department

of

Worker

State

–

Visas,

Bureau

of

Consular Affairs, https://travel.state.gov/content/travel/e
n/us-visas/employment/temporary-worker-visas.html
“State

Department

Visa

Application

[herein

Process”] 2.

The

2 Pursuant to Federal Rule of Evidence 201(b), courts may take judicial
notice of facts that are “not subject to dispute” because they are
“generally known within the trial court’s territorial jurisdiction” or
“can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2), (d). The
visa application process is readily determined from official
governmental websites whose accuracy cannot reasonably be questioned.
See Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp.
3d 156, 166 (S.D.N.Y. 2015); see also Perez v. Ahlstrom Corp., No. 10cv-1299, 2011 WL 2533801, at *2, (D. Conn. June 27, 2011) (holding that

12

application process for a given visa depends on the temporary
worker visa category the individual is applying under. Here,
the record shows that Defendants petitioned for an “O-1B” and
“O-2” visa for the Performers and their respective staffs.
(See

Dkt.

No.

63-5

[herein

“Visa

Approvals”].)

The

“O”

nonimmigrant category includes “applicants with extraordinary
ability

or

achievement

in

the

fields

of

science,

art,

education, business, or athletics.” (See State Department
Visa Application Process.) This category encompasses the “O1B”

visa

petition,

extraordinary

ability

which
in

the

is

for

arts,

individuals

and

the

“O-2”

with
visa

petition, which is for individuals who will accompany an “O1B” artist. See O-1 Visa: Individuals with Extraordinary
Ability

or

Services,

Achievement,

U.S.

Citizenship

and

Immigration

https://www.uscis.gov/working-in-the-united-

states/temporary-workers/o-1-visa-individuals-withextraordinary-ability-or-achievement (last updated Mar. 3,
2023).

the court “may also properly consider ‘matters of which judicial notice
may be taken,’ . . . including information on an official government
website.”)
The Court may properly consider the information from an official United
States government website at the summary judgment stage because “any
facts subject to judicial notice may be properly considered in a motion
for summary judgment.” Desclafani v. Pave-Mark Corp., No. 07-cv-4639,
2008 WL 3914881, at *5 n.7 (S.D.N.Y. Aug. 22, 2008) (citations
omitted).

13

“Before an applicant can apply for a temporary worker
visa,

USCIS

must

Nonimmigrant

first

Worker,

approve

Form

the

I-129”

“Petition

(“I-129”).

for

(See

a

Visa

Application Process.) Once the petition is approved, the
applicant can apply for a temporary worker visa by completing
and submitting a DS-160. (Id.) In sum, in order to secure the
O-1B and O-2 visas, Defendants had to submit an I-129 petition
and, once approved by U.S.C.I.S., submit a DS-160 to schedule
an interview.
There

is

evidence

in

the

record

which

suggests

Defendants submitted an I-129 petition and got the petition
approved

by

U.S.C.I.S.

(See

“Visa

Approvals”

at

2-11.)

However, Defendants failed to meet their burden of showing no
triable issue of fact as to whether they followed the next
step and filed a DS-160 with the Embassy. Instead, Defendants
merely assert that they hired an immigration attorney to
obtain the visa approvals and were waiting for the visas to
be issued by the Embassy. (See Def.’s Reply at 10.) Defendants
do not provide any evidence that forecloses the issue of
whether they submitted a DS-160 with the Embassy, nor do they
expressly confirm submitting one in their reply brief.
Defendants point out that there is no evidence that
affirmatively indicates that they failed to submit a DS-160.
However, this Court “must view the evidence in light most
14

favorable to the party opposing summary judgment and must
draw

all

permissible

inferences

from

the

submitted

affidavits, exhibits, interrogatory answers, and depositions
in favor of that party.” Gummo v. Vill. of Depew, N.Y., 75
F.3d 98, 107 (2d Cir. 1996). Here, Defendants’ failure to
provide any documentary proof that they submitted a DS-160,
despite their insistence that they submitted a complete visa
application,

is

conspicuous

and

supports

a

reasonable

inference that they failed to complete this part of the
application.
The

lack

of

any

documentary

proof

that

Defendants

submitted a complete visa application creates triable issues
of fact as to whether Defendants performed under the contract.
Accordingly,

summary

judgment

is

DENIED

with

respect

to

Plaintiffs’ breach of contract claim (Count One) against
Tristate.
B.
UNJUST ENRICHMENT CLAIM AGAINST TRISTATE AND
AROMIN
Proving an unjust enrichment claim under New York law
requires a plaintiff to establish

“(1) that the defendant

benefited; (2) at the plaintiff’s expense; and (3) that equity
and good conscience require restitution.” Beth Israel Med.
Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448
F.3d 573, 586 (2d Cir. 2006). “Unjust enrichment is a quasi-

15

contractual theory of recovery that exists in the absence of
an affirmative agreement.” Ford v. Rensselaer Polytechnic
Inst., 507 F. Supp. 3d 406, 419 (N.D.N.Y. 2020) (citing Beth
Israel Med. Ctr., 448 F.3d at 586). Under New York law, a
claim for unjust enrichment cannot be made if the claim
relates to a matter covered by a written contract. Sofi
Classic S.A. de C.V. v. Hurowitz, 444 F. Supp. 2d 231, 249
(S.D.N.Y. 2006). If there is a valid written agreement “the
existence of which is undisputed, and the scope of which
clearly covers the dispute between the parties,” the doctrine
of unjust enrichment does not apply. Clark-Fitzpatrick, Inc.
v. Long Island R.R. Co, 516 N.E.2d 190, 193 (N.Y. 1987).
Plaintiffs’

first

unjust

enrichment

claim

against

Tristate clearly falls under this exception. That claim is
based

on

Tristate’s

failure

to

refund

Plaintiffs

their

Initial Deposit of $35,700 after the cancellation of the
Concert Series. (See Compl. at ¶¶ 57-61.) The terms of the
Booking Agreements and Amended Booking Agreements expressly
covered when a refund of Plaintiffs’ Initial Deposit was owed.
As previously mentioned, Sections 4.1.1 and 4.1.2 of the
Booking

Agreements

clearly

provided

that

if

the

Concert

Series is cancelled due to certain enumerated causes outside
the control of Tristate, including the denial of a visa, any
deposits made were to be applied to the rescheduled Concert
16

Series. (See Booking Agreements at 7-8.) Section 4.1.3 of the
Booking

Agreements

further

provided

that

if

the

Concert

Series was cancelled for causes other than (1) force majeure
events

or

(2)

a

denial

Plaintiffs

all

deposits

of
made,

visa,
and

Tristate
expenses

must

refund

incurred,

in

mounting and promoting the event. (Id.)
The parties do not dispute that the contract covers the
refund at issue nor do the parties dispute the validity and
enforceability of the contract. Plaintiffs state in their
Opposition that a contract “exists between the Plaintiffs and
the Defendants.” (See Pl.’s Opp. at 13.) Plaintiffs appear to
argue, however, that because they allege that Defendants
never entered into a contract with RankOne, there is a dispute
as to the existence of a contract that justifies permitting
a quasi-contract claim. (See Opposition at 16.) The ancillary
contract with RankOne is not relevant to this analysis. The
key factor in dismissing the unjust enrichment claim is
whether the contract Plaintiffs entered into with Defendants
is (1) valid and enforceable and (2) covers the subjectmatter of the unjust enrichment claim. See Ford v. Rensselaer
Polytechnic Inst., 507 F. Supp. 3d 406, 419 (N.D.N.Y. 2020).
There is no bona fide dispute that a valid contract between
Plaintiffs and Tristate covers the topic of the $35,700
Initial Deposits Plaintiffs made.
17

The unjust enrichment claim against Aronin faces the
same fate. That claim is based on Plaintiffs’ directly paying
Aromin the Initial Deposits that are the subject matter of
their breach of contract action. (See Compl. ¶¶ 75-78.)
Accordingly,

this

Court

GRANTS

summary

judgment

for

Defendants on Plaintiffs’ Unjust Enrichment Claim (Count Two
and Count Five.)

C.

CONVERSION CLAIMS AGAINST TRISTATE AND AROMIN.

“Conversion

occurs

when

a

defendant

exercises

unauthorized dominion over personal property in interference
with

a

plaintiff’s

legal

title

or

superior

right

of

possession.” LoPresti v. Terwilliger, 126 F.3d 34, 41 (2d.
Cir. 1997) (quotations omitted). Even if a plaintiff meets
all of the elements of a conversion claim, the claim will
still be dismissed if it is duplicative of a breach of
contract claim. AD Rendon Communications, Inc. v. Lumina
Americas,

Inc.,

No.

04-CV-8832,

2007

WL

2962591,

at

*4

(S.D.N.Y. Oct. 10, 2007). In determining whether a conversion
claim is duplicative of a breach of contract claim, courts
look to “the material facts upon which each claim is based
and to the alleged injuries for which damages are sought.”
Id. at 5. If the claim for conversion does not allege wrongs
and damages distinct from those predicated on a breach of
18

contract, it is duplicative and must be dismissed. Ellington
Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F.
Supp. 2d 162, 204 (S.D.N.Y. 2011).
Plaintiffs’ conversion claim is based on the failure of
Tristate and Aromin to refund their Initial Deposits amount
of $35,700. (See Compl. ¶¶ 62-64, 79-83; Pl.’s Opp. at 21.)
Any duty to refund Plaintiffs the Initial Deposits was derived
from the Booking Agreements and Amended Booking Agreements
entered into by the parties. Plaintiffs note that conduct
which constitutes a breach of contract may also constitute
the breach of a duty independent of the contract itself. (See
Compl. ¶¶ 62-64; Opposition at 15.) However, the Court does
not

find

any

evidence

in

the

record

establishing

an

independent duty of Defendants to refund Plaintiffs outside
of the contractual obligations. Plaintiffs cite two cases in
support of finding a separate duty, but those cases are
inapposite and stand only for the proposition that a corporate
officer may be held personally responsible for the commission
of a tort when acting on behalf of their corporate principal.
See Merill Lynch, Pierce, Fenner & Smith Inc. v. Arcturus
Builders, Inc, 552 N.Y.S.2d 287 (Sup. Ct. App. Div. 1990);
Espinosa v. Rand, 806 N.Y.S.2d 186 (Sup. Ct. App. Div. 2005)
(which does not even discuss a claim for conversion or breach
of contract).
19

The relevant question the Court is faced with here is
not

whether

conversion

Aromin

but

can

whether

be

held

the

individually

record

shows

an

liable

for

independent,

actionable wrong outside of the contract to which Aromin is
a signatory. Here, Plaintiffs are seeking enforcement of the
Booking Agreements and Amended Booking Agreements because
their claims derive from Defendant’s contractual duty to
refund Plaintiffs in the event the Concert Series

were

cancelled for causes attributable to Defendants. Moreover,
“both the conversion and breach of contract claims seek
redress for virtually the same damages”: the $35,700 Initial
Deposits. AD Rendon Communications, Inc., 2007 WL 2962591, at
*4.
Accordingly,

this

Court

GRANTS

summary

judgment

for

Defendants on Plaintiffs’ Conversion Claim (Count Three and
Count Six.)

D.

FRAUD CLAIMS

In their Complaint, Plaintiffs allege that Defendants
committed fraud by (1) falsely promising to perform on its
contractual obligations and (2) falsely promising that they
entered into the RankOne Agreement. (See Compl. ¶¶ 65-69.)
Under New York law, where a fraud claim is stated in
conjunction with a breach of contract claim, “a plaintiff
20

must either: (i) ‘demonstrate a legal duty separate from the
duty to perform under the contract’; (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.’
Ellington Credit Fund, Ltd. v. Select Portfolio Servicing,
Inc.,

837

F.

Supp.

2d

162,

198

(S.D.N.Y.

2011)

(citing

Bridgestone/Firestone, Inc., 98 F.3d 13, 20 (2d Cir. 1996)).
Plaintiffs’ fraud claim related to Defendants’ promises
to

perform

Tristate’s

its

contractual

alleged

breach

obligations

of

contractual

is

premised

duties

and

on
is

dismissed as duplicative of the breach of contract claim. 3 In
addition, Plaintiffs’ claim that Defendants misrepresented
having entered into the RankOne Agreement is insufficient to
support

a

claim

for

fraud

under

New

York

Law.

A

misrepresentation that is merely a promise to perform under
a contract cannot constitute fraud. See Wild Bunch, SA v.
Vendian Entertainment, LLC, 256 F. Supp. 3d 497, 502 (S.D.N.Y.
2017); See Manning v. Utils. Mut. Ins. Co., Inc., 254 F.3d

To the extent Plaintiffs’ fraud claims are based on representations
made by Lantin, a non-party to the contract, those claims are also
duplicative of the breach of contract claims. The evidence shows that
the representations Lantin made were related to Tristate’s ability to
secure the visas for the Performers. These statements amount to mere
representations that Tristate will perform under the contract. See
Exch. Listing, LLC v. Inspira Techs., Ltd., 661 F. Supp. 3d 134, 158
(S.D.N.Y. 2023) (“[C]ourts have found fraud claims to be duplicative,
even as against the non-party.”).
3

21

387, 401 (2d Cir. 2001) (concluding that a representation
that “is merely a statement of intent to perform under the
contract

cannot

constitute

fraud”);

Bridgestone/Firestone

Inc., 98 F.3d at 19-20 (dismissing a fraud claim where the
alleged misrepresentations “amount[ed] to little more than
intentionally false statements . . . indicating [defendant’s]
intent to perform under the contract.”).
Moreover, Plaintiffs do not allege any damages that
would not be recoverable under their breach of contract cause
of action; they seek to recover the Initial Deposits made to
Tristate and incidental expenses incurred in promoting the
Concert Series. These are all damages that are otherwise
recoverable in Plaintiffs’ breach of contract action. See
Manas v. VMS Assocs., LLC, 863 N.Y.S.2d 4, 7-8 (N.Y. App.
Div. 2008) (dismissing plaintiff’s fraud claims because her
requested relief of salary and bonuses were also recoverable
in her breach of contract cause of action.) Plaintiffs are
otherwise

not

owed

recovered

for

fraud

indifference
demonstrative

as
of

punitive

to

that
be

a

damages,

is

“founded

aggravated

criminal

which

by

may

only

upon

such

evil

or

indifference

to

be

moral
to

be

civil

obligations.” Koch v. Greenberg, 14 F. Supp. 3d 247, 273
(S.D.N.Y. 2014). There is no admissible evidence in the record
establishing such circumstances.
22

Therefore,

Plaintiffs’

claims

for

fraud

must

be

dismissed as duplicative of the breach of contract claim.
Accordingly,

summary

judgment

for

Defendants

Tristate,

Lantin, and Aromin as to Plaintiffs’ claim for fraud and
misrepresentation (Count Four) is GRANTED.
E.

BREACH OF FIDUCIARY DUTY

Plaintiffs’ complaint includes a claim for breach of
fiduciary duty against Lantin, alleging that because Purino
was friends with Lantin, Lantin has a fiduciary duty to “tell
the truth to [Purino] that they have no existing contractual
relationship” with the Performers’ agents. (See Compl. ¶¶ 8586.) The relationship Plaintiffs describe does not create a
fiduciary.

See

Benzies

v.

Take-Two

Interactive

Software,

Inc., 159 A.D.3d 629, 631 (N.Y. App. Div. 2018) (holding that
the existence of a close friendship is not sufficient to
establish the necessary requirement of trust and confidence
for a viable claim for breach of fiduciary duty to proceed).
Accordingly, summary judgment on Plaintiffs’ claim for breach
of fiduciary duty is GRANTED for Defendant Lantin.

IV.

ORDER

For the foregoing reasons, it is hereby
ORDERED that the motion for summary judgment (Dkt. No.
60) of Defendants Tristate and Beyond, LLC, Romulo Aromin,
23

Jr., and Flordeliza Lantin is DENIED, in part, and GRANTED,
in part. Specifically, the motion for summary judgment on
Count One is DENIED, and the motion is GRANTED in all other
respects.
The Clerk of the Court is directed to terminate the
motion for summary judgment entered at Docket No. 60.
SO ORDERED.
Dated:

24 September 2024
New York, New York
_________________________
Victor Marrero
U.S.D.J.

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