OPINION AND ORDER
Conner, Senior D.J.:
Plaintiff Ramapo Land Co., Inc. ("Ramapo"), a New York corporation, brought this action for negligence and breach of contract against defendants Consolidated Rail Corporation ("Conrail"), a Pennsylvania corporation, and Budco Group, Inc. ("Budco"), an Ohio corporation. Presently before the court is plaintiff's motion for summary judgment pursuant to Fed. R. Civ. P. 56(b), dismissing various counterclaims asserted by Conrail. For the reasons discussed below, the motion is denied.
This diversity action arises out of an accident that occurred on August 3, 1993. A train operated by Conrail struck and destroyed a bridge (the "Conrail Bridge") which provided access to real property owned by plaintiff, on which are located a warehouse and residential housing. Defendant Budco loaded the COFC (container on flat car) which struck the Conrail Bridge. Ramapo asserted claims for negligence and breach of contract in connection with the destruction of and delay in repairing the Conrail Bridge.
In February 1994, Ramapo and Conrail entered into an agreement whereby Conrail agreed to pay for the upgrade of an alternate access road (known as Torne Brook Road) to "provide an emergency temporary alternate means of access to residences located on the . . . properties belonging to Ramapo pending the repair, reconstruction and replacement of the Bridge." Pl.'s Mem. of Law in Support of Motion for Summary Judgment, Ex. A (the "Torne Brook Road Agreement"). Plaintiff brought this action to recover damages for the loss of use of its property, alleging loss of rental income caused by the fact that there was no primary access to Ramapo's property after the Conrail Bridge was destroyed, exacerbated by Conrail's inexcusable delay in repairing the bridge. Plaintiff further alleged that Conrail was required by agreement to maintain the Conrail Bridge.
As a separate but related issue in this case, plaintiff seeks specific performance and alleged further damages with respect to the closing of a grade crossing (the "Grade Crossing") by Conrail, which plaintiff alleges Conrail is required to maintain and allow plaintiff to use for truck access to plaintiff's warehouse. The Grade Crossing dispute is not a subject of the instant motion.
Conrail asserted crossclaims against Budco for negligently loading the COFC which struck and destroyed the Conrail Bridge. Conrail and Budco have stipulated as to the apportionment between them of any damages recovered by Ramapo on its claim for lost rental income caused by the destruction and delay in repair of the Conrail Bridge. Conrail asserted counterclaims against Ramapo, alleging, inter alia, (1) that plaintiff knowingly made material misrepresentations to Conrail to induce Conrail to enter into the Torne Brook Road Agreement (the "second counterclaim"), (2) that Conrail is not required to maintain the Conrail Bridge (the "third counterclaim"), (3) that plaintiff was unjustly enriched by its fraudulent misrepresentation to Conrail which induced Conrail to enter into the Torne Brook Road Agreement (the "fifth counterclaim"), and (4) that Conrail is entitled to punitive damages (the "sixth counterclaim"). The gravamen of Conrail's second and fifth counterclaims for misrepresentation and unjust enrichment is that plaintiff represented to Conrail that Torne Brook Road had to be upgraded to accommodate the anticipated increase in traffic due to the destruction of the Conrail Bridge. Conrail alleges that plaintiff represented to Conrail that Torne Brook Road was needed for emergency vehicles, school buses, large trucks and other vehicles (which purportedly had used the Conrail Bridge prior to August 9, 1993) to access plaintiff's land. The only other access to plaintiff's property, the Grade Crossing, had been closed by Conrail. Conrail claims that after it entered into the Torne Brook Road Agreement and paid to upgrade Torne Brook Road, it learned that (1) the Conrail Bridge never was used for the purposes that plaintiff claimed it was, thus bringing into question whether or not Conrail was legally or morally obligated to pay for the upgrade to accommodate an increase in traffic that supposedly would result from the destruction of the Conrail Bridge and (2) even before August 3, 1993, plaintiff already had planned to conduct certain upgrades to Torne Brook Road and therefore received a windfall by inducing Conrail to foot the bill for the upgrade. Conrail's third counterclaim seeks a declaratory judgment relieving it of any obligation under any agreement with plaintiff or plaintiff's predecessors in interest executed prior to April 1, 1976, including an 1881 agreement which, according to plaintiff, requires Conrail to maintain the Conrail Bridge (the "1881 Agreement").
Plaintiff seeks summary judgment on Conrail's second, fifth, and sixth counterclaims on the ground that it is undisputed that there was no misrepresentation in reaching the Torne Brook Road Agreement, and on Conrail's Third counterclaim on the ground that the federal statute on which Conrail relies does not apply to the 1881 Agreement which purportedly requires Conrail to maintain the Conrail Bridge.
A moving party is entitled to summary judgment pursuant to Rule 56(c) if the papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the court's responsibility is to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); United States v. Diebold, Inc., 369 U.S. 654, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).
I. Rule 3(g)
As a preliminary matter, we address Conrail's argument that Ramapo Land failed to comply with procedural requirements of Local Rule 3(g) of the United States District Court for the Southern District of New York. Rule 3(g) provides that "upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Failure to submit such a statement constitutes grounds for denying summary judgment. We are reluctant, however, to raise form over substance in a case such as this where the moving party's affidavit sets forth a statement of uncontested material facts upon which the movant bases its motion for summary judgment. See Affidavit of Gerard Amalfitano ("Amalfitano Aff."). Counsel's failure to abide by basic procedural requirements gives reason for pause, but his affidavit satisfies the essential elements that Rule 3(g) was intended to address. Though it is a far cry from a model 3(g) statement, it is a sworn statement of uncontested facts and provides sufficient notice to the nonmoving party concerning the facts upon which summary judgment is sought. We therefore address the merits of plaintiff's motion to dismiss Conrail's counterclaims.
Conrail's second counterclaim for misrepresentation alleges fraud. "New York requires proof of the traditional five elements of fraud: misrepresentation of a material fact, falsity of that representation, scienter, reliance and damages." Mallis v. Bankers Trust Co., 615 F.2d 68, 80 (2d Cir. 1980) (citing Jo Ann Homes v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799, 803, 250 N.E.2d 214 (N.Y. 1969)), cert. denied, 449 U.S. 1123 (1981).
Because federal law governs the degree of particularity with which fraud must be pleaded in a complaint filed in federal court, even when fraud claims are brought under state law, see Stern v. General Elec. Co., 924 F.2d 472, 476 n.6 (2d Cir. 1991), "allegations of fraud must be supported by particular statements indicating the factual circumstances on which the theory of fraud is based." Id. at 476. To withstand dismissal of this fraud claim, Conrail must satisfy the pleading requirements of Rule 9(b), namely that
the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.
Fed. R. Civ. P. 9(b). Rule 9(b)'s heightened pleading standard is a departure from Rule 8's requirement that plaintiff plead a "short and plain statement" setting forth the allegations and grounds for relief. The particularity requirement (1) affords the defendants fair notice of the facts upon which the claim is based; (2) safeguards the defendants' reputation and goodwill from unfounded charges; and (3) it discourages "strike suits." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1057 (2d Cir. 1993), cert. denied, 130 L. Ed. 2d 38, U.S. , 115 S. Ct. 86 (1994); Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir. 1979), cert. denied, 446 U.S. 946, 64 L. Ed. 2d 802, 100 S. Ct. 2175 (1980).
To satisfy the particularity requirement of Rule 9(b), a complaint must adequately specify the statements it claims were false or misleading, give particulars as to the respect in which it contends the statements were fraudulent, state when and where those statements were made, and identify those responsible for the statements. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Goldman v. Belden, 754 F.2d 1059, 1069-70 (2d Cir. 1985). When facts are particularly within the defendant's knowledge, plaintiff need only plead the facts upon which its belief is based. DiVittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d Cir. 1987).
Conrail asserts its second counterclaim for misrepresentation as follows:
29. That prior to February 15, 1994, the Plaintiff induced the Defendant to enter into an Agreement whereby, the Defendant inter alia, paid the Defendant [sic -- should read "Plaintiff"] $ 83,700.00.