case, and on which that party will bear the burden of proof at
Furthermore, the Second Circuit has stated that "summary
judgment should rarely be granted . . . when the plaintiff has
not had an opportunity to resort to discovery procedures."
Schlesinger Inv. Partnership v. Fluor Corp., 671 F.2d 739, 743
(2d Cir. 1982); Quinn v. Syracuse Model Neighborhood Corp.,
613 F.2d 438, 445 (2d Cir. 1980). In addition, summary judgment is
rarely appropriate in contract actions where the intent of the
parties is in issue. See National Union Fire Ins. Co. v.
Turtur, 892 F.2d 199, 205 (2d Cir. 1989).
Plaintiff's claim that defendant breached the covenants of
good faith and fair dealing withstand defendant's summary
judgment motion. The issue of whether making the required
federal and state payments was an integral aspect of the
contractual relationship between defendant and Mr. Deleu is a
question of intent that cannot be resolved on summary judgment.
Furthermore, discovery is required to clarify the matter. While
this Court doubts that making these payments will prove an
essential part of the parties' agreement, it is constrained to
deny defendant's motion for summary judgment on the Second
cause of action at this stage because the issue of intent is
not resolved and further discovery must be completed.
Similarly, the question of whether Mr. Deleu and defendant
enjoyed a fiduciary relationship, although this court doubts
that such a relationship existed, is resolved only by assessing
the intent and understanding of the parties. In Walker v. Time
Life Films, Inc., 615 F. Supp. 430, 440 (S.D.N.Y. 1985), aff'd,
784 F.2d 44 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct.
2278, 90 L.Ed.2d 721 (1986), the court noted that "actionable
claims for breach of confidential and fiduciary relationships
are centered on breach of an agreement between the parties, or
breach of trust they place in each other because of the nature
of their relationship." Because this is a disputed issue that
can only be resolved by further discovery, defendant's motion
for summary judgment on the Third cause of action is denied.
II. Defendant's Violation of Federal and State Laws
Plaintiff asserts that because defendant intentionally failed
to make payments required by federal and state law, defendant
violated penal laws and thereby caused tortious injury to Mr.
Deleu.*fn1 The parties dispute whether Mr. Deleu sustained
damages as a result of the delinquent payments; such a
disagreement is irrelevant, however, because this Court finds
that the failure to make these payments does not create a
private cause of action. Accordingly, defendant's motion to
dismiss is granted as to plaintiff's Seventh cause of action.
Plaintiff's amended complaint bases the Seventh cause of
action solely on federal law. Specifically, plaintiff asserts
that defendant violated 26 U.S.C. § 7201, 7202 and 7204 by
failing to pay federal FICA and unemployment taxes on Mr.
Deleu's behalf, by failing to withhold taxes due from Mr.
Deleu, and by failing to furnish Mr. Deleu with a W-2
statement. Plaintiff's memorandum of law in opposition to
defendant's motion, however, disavows reliance on federal law
and instead insists that defendant's failure to make payments
required by state law constituted criminal conduct and gives
rise to a tort cause of action. See Plaintiff's Memo. at 13-14.
Plaintiff's claim is without merit in either case.
This Court need not consider whether Congress intended to
imply a private right of action for violations of either
26 U.S.C. § 7201, § 7202 or § 7204 because plaintiff does not
oppose defendant's motion to dismiss on this point. It bears
noting, however, that plaintiff did not cite and this Court did
not find any evidence that Congress
intended to imply a private remedy for violations of these
sections of the federal tax law. Courts will imply a private
remedy only where they find that Congress intended such a
result. See Merrill, Lynch, Pierce, Fenner & Smith, Inc. v.
Curran, 456 U.S. 353, 377-78, 102 S.Ct. 1825, 1838-39, 72
L.Ed.2d 182 (1982); Touche Ross & Co. v. Redington,
442 U.S. 560, 575, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979). In
Turner v. Unification Church, 473 F. Supp. 367, 376-77 (D.R.I.
1978), aff'd, 602 F.2d 458 (1st Cir. 1979), the court refused
to find a private cause of action under the federal tax laws
because enforcement of the tax code has always been a public
function. In addition, the legislative history does not
indicate Congress' intention to provide a private remedy. See
id.; Noble v. Arabian Am. Oil Co., No. 83-1218 (D.Mass. Dec.
Plaintiff's attempt to assert a cause of action under New
York law due to defendant's failure to make certain statutorily
required payments is equally unpersuasive. While plaintiff
couches her claim in the language of tort, she asks this Court
to grant damages based upon defendant's violations of
employment-related tax laws, found in the New York Workmen's
Compensation Law and the New York Labor Law. Plaintiff cannot
change the nature of her claim merely by calling it a tort; her
claim is one for damages based upon violations of statutes that
do not expressly create a private cause of action and this
Court finds no basis for implying a private remedy for
violations of these laws.
In Burns Jackson Miller Summit & Spitzer v. Lindner, 59
N Y2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983), the Court
of Appeals adopted what is now the governing standard for
determining when courts may imply a private remedy under a
statute. Courts may imply a private remedy for violations of
New York law only when plaintiff is "one of the class for whose
especial benefit the statute was enacted," the legislative
history reveals an intent to create a private remedy and "most
importantly, [when implying a private remedy is consistent]
with the purposes underlying the legislative scheme." Burns,
464 N.Y.S.2d at 716, 451 N.E.2d at 463. New York courts have
declined to imply a private remedy for violations of the Labor
law. See Brian Hoxie's Painting Co. v. Cato-Meridian Cent.
School Dist., 76 N.Y.2d 207, 557 N.Y.S.2d 280, 282,
556 N.E.2d 1087, 1089 (1990); Stoganovic v. Dinolfo, 92 A.D.2d 729, 461
N YS.2d 121 (4th Dep't 1983), aff'd, 61 N.Y.2d 812, 473
N YS.2d 972, 462 N.E.2d 149 (1984).
Like the federal employment-related tax laws, New York's
statutes are revenue production laws and were not enacted for
plaintiff's benefit. In addition, plaintiff has not provided
any evidence that the New York Legislature intended to create
a private remedy for violations of these laws. Finally, and
most importantly according to the Court of Appeals, the laws
contain a comprehensive enforcement scheme that would not be
furthered by permitting private enforcement. See Sheehy v. Big
Flats Community Day, Inc., 73 N.Y.2d 629, 543 N.Y.S.2d 18, 21,
541 N.E.2d 18, 18 (1989). The Commissioner of Labor is
empowered to enforce the statute through an expedited civil
action. Thus, even were the statute enacted for plaintiff's
benefit, allowing a private remedy is unnecessary because the
Commissioner can enforce the law and collect delinquent
payments with greater efficiency then could a private
In support of her claim, plaintiff cites two cases decided
before the Court of Appeals rendered its decision in Burns
Jackson that find liability based on a violation of state
criminal statutes. This Court concedes, however, that the same
conduct that constitutes criminal behavior may also give rise
to a tort cause of action under New York law. In the instant
action, for instance, defendant's conduct did at one point
transgress criminal statutes and may also have constituted a
breach of contract. In contrast, plaintiff's Seventh cause of
action is one for damages under New York's tax laws; plaintiff
articulates no alternative theory of liability, but rather
rests this claim solely on statutory violations. To sustain
such an action, this Court must
imply a private remedy because the state laws are silent on the
availability of a private remedy. See New York Labor Law § 560
(McKinney 1988); New York Workmen's Compensation Law § 209 et
seq. (McKinney 1965). Having considered both the Burns Jackson
analysis and previous decisions by New York courts, this Court
concludes that plaintiff does not have a private remedy for
violations of the relevant New York statutes. Accordingly,
under either a Rule 12(b)(6) or Rule 56 standard, plaintiff's
Seventh cause of action is without merit and is dismissed.
Defendant's motion to dismiss, or in the alternative, for
summary judgment on the Second and Third causes of action of
the amended complaint is denied. Defendant's motion to dismiss
the Seventh cause of action of the amended complaint is granted
and the claim is dismissed. Plaintiff has failed to oppose
defendant's motion to dismiss the Fifth and Sixth causes of
action of the amended complaint and these claims are dismissed.
Pursuant to Rule 41(a)(2) plaintiff has moved to dismiss the
First and Fourth causes of action of the amended complaint and
these claims are dismissed.