"confidential, agency or fiduciary relationship" between plaintiff and Corey Horowitz (Complaint, para. 27) is inconsistent with plaintiff's prior sworn testimony. Defendants' Memorandum, at 36. While the Court believes that some of the testimony from the Kenneth Iscol deposition (Defendants' "Notice of Motion," Exhibit G), as cited in the defendants' briefs, calls into question whether or not a fiduciary relationship existed between the plaintiff and Corey Horowitz, we do not believe that it establishes the absence of such a relationship. Viewing the evidence in a light most favorable to the plaintiff, we find that there exists a triable issue of fact as to the nature of the relationship between plaintiff and Corey Horowitz.
Not having alleged damages to itself, plaintiff has failed to state a claim upon which relief can be granted for either fraudulent concealment or constructive fraud. Accordingly, we grant defendants' motion to dismiss the complaint with respect to these two causes of action. As plaintiff has already had two opportunities to amend its complaint, we will not allow the plaintiff a third opportunity to redraft its allegations, and we therefore dismiss the fraudulent concealment and constructive fraud claims with prejudice. See Morse/Diesel, Inc. v. Fidelity and Deposit Co. of Maryland, 1992 U.S. Dist. LEXIS 3749, 1992 WL 75123, at 8 (S.D.N.Y.).
The plaintiff does state a claim upon which relief can be granted for breach of fiduciary duty. Viewing the breach of fiduciary duty cause of action in a light most favorable to plaintiff, the Court finds that triable issues of fact exist as to the merits of the claim. Accordingly, we deny defendants' motion to dismiss or, in the alternative, for summary judgment with respect to the breach of fiduciary claim.
We observe, however, that the plaintiff's allegations with respect to the details of defendants' alleged breach of their fiduciary duty are vague and unspecific. Plaintiff no where states what "confidential" information defendants provided to Metromedia; nor does plaintiff provide the Court with a description of the benefits defendants derived from their alleged wrongful conduct. Accordingly, if after discovery plaintiff cannot specify its allegations with respect to what confidential information was released by defendants and what benefits defendants gained from the alleged breach of fiduciary duty, defendants may renew their motion for summary judgment with respect to the cause of action for breach of fiduciary duty.
Dated: New York, New York
June 28, 1993
KENNETH CONBOY, U.S.D.J.