extent of Manhattan Ice's work in order to interest Miglin in a venture that otherwise would have seemed unrealistic. Finally, Miglin alleges damages to the extent of its expenditures in producing and marketing the Gottex sun-care products. Thus, for present purposes, Miglin has sufficiently established that Gottex knowingly made misrepresentations with the intent of inducing Miglin's reliance and that Miglin was injured because of its reliance.
Miglin further alleges that Gottex's fraudulent promises induced it to continue performance. To prove this claim, Miglin needs to prove that Gottex's promises to it were made with present intent not to perform the promised acts. Under New York law, a failure to perform promises of future acts is not fraudulent unless there existed at the time the promise was made an intent not to perform. Murray v. Xerox Corp., 811 F.2d at 121; Chase Manhattan Bank, N.A. v. Perla, 65 A.D.2d 207, 210, 411 N.Y.S.2d 66, 68 (4th Dep't 1978). Miglin alleges that Gottex gave assurances that it would execute the license agreement and that it promised to do more to help introduce and market the sun-care line than in fact it did. Thus, Gottex allegedly induced Miglin's continuing performance while at the same time avoiding a formal agreement with Miglin as well as the closer association of the two enterprises that would have resulted from Gottex's more active promotion of the sun-care line. Again, Miglin's allegation is supported by Gottex's admitted eagerness to make good on the public announcement of Systeme Soleil. The allegation gains additional support from Gottex's averment that it came to be displeased with Miglin's performance. Thus, Gottex may have tried to avoid a close and binding relationship with Miglin while still attempting to assure Miglin's short-term performance. In addition, Miglin claims that it would not have continued performance if it had not relied upon Gottex's assurances and that it was injured as a result of this additional reliance. Therefore, Miglin's allegations are sufficient to establish the elements of a fraudulent promise, and Gottex's motion for summary judgment on this claim is denied.
G. Tortious Interference with Prospective Economic Advantage
Miglin's other claims merit briefer treatment. First, Miglin claims that Gottex tortiously interfered with Miglin's prospective business relations with stores that would have stocked the Gottex sun-care line if production and marketing had continued. To state a claim for this tort, however, the plaintiff must establish that the defendant indeed interfered with business relations between the plaintiff and a third party. Volvo North America Corp. v. Men's International Professional Tennis Council, 857 F.2d 55, 74 (2d Cir. 1988). For example, in Volvo North America, the Second Circuit vacated dismissal of a claim for tortious interference with prospective business relations. Id. at 79. It emphasized that the "requisite interference" with the plaintiff's prospective relations with third parties had been alleged; this included such acts as directing intimidating letters and threats of punitive action to producers of tournaments that might otherwise have allowed the plaintiff to sponsor their events. Id. at 74-75. Here, in contrast, Miglin alleges no actions taken towards third parties by Gottex, and therefore this claim must be dismissed.
H. Unjust Enrichment
Next, Miglin's claims for recovery based on unjust enrichment must fail since this equitable theory requires a showing that the defendant somehow benefitted from the plaintiff's performance. Dolmetta v. Uintah National Corp., 712 F.2d 15, 20 (2d Cir. 1983). Miglin has not alleged that any gain resulted to Gottex from the brief existence of the sun-care product line. Gottex did not receive royalties for the use of its name, it has not made any use of the product and marketing designs developed by Miglin, and Miglin has not alleged any facts to support an inference that the troubled association between the two companies somehow boosted Gottex's reputation.
I. Quantum Meruit
Finally, Miglin's claim for restitution based on a theory of quantum meruit must also fail since quantum meruit requires "that the defendant must have received the plaintiff's performance." Farash v. Sykes Datatronics, Inc., 59 N.Y.2d 500, 506, 465 N.Y.S.2d 917, 920, 452 N.E.2d 1245 (1983). In Farash the New York Court of Appeals explained "receipt" by stating: "'if what the plaintiff has done is part of the agreed exchange, it is deemed to be "received" by the defendant.'" Id. at 506, 465 N.Y.S.2d at 920 (quoting Calamari and Perillo, Contracts § 15-4, at 574 (2d ed. 1977)) (emphasis 25 added). Here, Miglin does not allege that Gottex received anything that was part of an agreement with Miglin, such as, for example, the royalties that were part of the license agreement. Accordingly, summary judgment is granted in favor of Gottex on the quantum meruit claim.
For the foregoing reasons, Gottex's motion for summary judgment is granted with regard to the breach of contract, tortious interference, unjust enrichment, and quantum meruit claims. Summary judgment is denied as to Miglin's promissory estoppel and fraud claims.
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
April 29, 1992