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July 13, 1993


The opinion of the court was delivered by: LESLIE G. FOSCHIO



 This matter was referred to the undersigned by the Hon. Richard J. Arcara, District Judge, on April 14, 1992 for determination of all pretrial matters and report and recommendation on any dispositive motions. The action is presently before the court pursuant to Defendant Negociants U.S.A.'s ("Negociants") and Defendant Lauber Imports' ("Lauber") motions to dismiss Plaintiff's First Amended Complaint, dated March 31, 1992.


 Plaintiff, a New York corporation and a wholesale distributor of wine and liquor in upstate New York, filed this diversity action on December 12, 1991, asserting causes of action against Defendants Negociants, a California corporation, and Lauber, a New Jersey corporation, for breach of contract, tortious interference with a contract, unjust enrichment, conversion, termination of a contract in violation of New York Commercial Code Section 2-309, and malicious, reckless, and wanton disregard of Plaintiff's rights in violation of public policy.

 On January 31, 1992, Lauber filed a motion to dismiss the complaint for failure to state a cause of action. Negociants also filed a motion to dismiss the complaint on February 6, 1992. In response, Plaintiff filed a First Amended Complaint on March 31, 1992, asserting a cause of action for breach of contract against Negociants, and causes of action against Lauber for tortious interference with a contract, tortious interference with contractual relations, and, in the alternative, unjust enrichment.

 On April 22, 1992, Negociants filed a motion to dismiss the First Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a cause of action. Lauber filed a similar motion to dismiss the amended complaint on April 24, 1992. After briefing by the parties, oral argument was held before the court on September 3, 1992. *fn1"

 For the reasons as set forth below, Defendants' motions to dismiss the First Amended Complaint should be DENIED.


 Plaintiff is a wholesale liquor distributor based in Buffalo, New York whose principal business activity is to purchase and distribute imported and domestic liquors and wines to retail sellers. *fn2" Negociants is a wholly owned United States marketing company of the Australian wine company which produce the wines at issue in this case. Lauber is a liquor distributor, similar to Plaintiff, who, prior to the actions which preceded this lawsuit, distributed Negociants' wines in the New York City region.

 According to its First Amended Complaint, Plaintiff entered into an oral contract with Negociants in July, 1988 to be the exclusive distributor for Negociants' wines in the Western and Central New York regions. On August 17, 1990, Plaintiff's territory was expanded to include the Albany, New York region. Plaintiff's distribution agreement with Negociants was of an indefinite duration.

 Since 1988, Lauber had been the exclusive distributor for the Negociants wines in the New York City region. In April, 1991, Plaintiff states that Lauber began distributing Negociants wines in Plaintiff's territory. Allegedly in retaliation, Plaintiff sold Negociants wine in Lauber's territory. On August 20, 1991, Negociants gave the exclusive distributorship of their wines for Rockland, Dutchess, and Putnam counties to Lauber. On November 7, 1991, allegedly without notice to Plaintiff, Negociants gave an exclusive distributorship for the entire New York State region to Lauber, terminating its relationship with Plaintiff. Additionally, Negociants allegedly then failed to fill any further wine orders for Plaintiff, including previously placed orders.

 Plaintiff alleges that Negociants' actions in terminating its relationship with Plaintiff were a result of Lauber's threats to Negociants to discontinue its distribution of Negociants wines unless it was given the entire New York State territory. Plaintiff also alleges that Negociants actually partially terminated its agreement with Plaintiff in August, 1991, without notice, by awarding certain counties previously under Plaintiff's control to Lauber, resulting in a breach of contract. Plaintiff also contends that Lauber, on or about April, 1991, began, without any legal justification for doing so, notifying Negociants that Plaintiff was selling Negociants' products in areas within Lauber's exclusive control. Additionally, Plaintiff alleges that Lauber, on November 8, 1991, sent notices to retailers in Plaintiff's territory identifying itself as the exclusive distributor for Negociants' products, as opposed to Plaintiff. Plaintiff claims irreparable damage from Lauber's alleged tortious conduct. Plaintiff also alleges a cause of action for tortious interference with prospective contractual relations and, alternatively, unjust enrichment against Lauber because of its actions against Plaintiff.


 On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept a plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Association, 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). The court is required to read the complaint with great generosity on a motion to dismiss. See Yoder v. Orthomolecular, 751 F.2d 555 (2d Cir. 1985).

 In a diversity action such as the instant action, because New York is the forum state, New York's choice-of-law rules will determine which state's substantive law should apply. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Machleder v. Diaz, 801 F.2d 46 (2d Cir. 1986). The question is, therefore, not what law the federal court would apply, "but what law the New York courts would apply." O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 205 (2d Cir. 1978), cert. denied, 439 U.S. 1034, 58 L. Ed. 2d 696, 99 S. Ct. 639 (1978). Under New York's choice-of-law rule, the law of the jurisdiction having the most significant contacts and the greatest interest in the litigation will be applied. See Index Fund, Inc. v. Insurance Company of North America, 580 F.2d 1158 (2d Cir. 1978); Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 612 N.E.2d 277, 595 N.Y.S.2d 919 (N.Y. 1993); Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 480 N.E.2d 679, 491 ...

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