The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
This diversity action is before the Court on defendant's motion
to dismiss three of the four causes of action in the complaint.
For the reasons stated below, the motion is granted. BACKGROUND
With regard to jurisdiction, plaintiff's complaint alleges
diversity: plaintiff is a resident of New York and defendant is a
foreign corporation, based in Delaware, with a place of business
in this jurisdiction. (Compl. ¶ 2.) The amount in controversy
exceeds $75,000, thus meeting the jurisdictional
At some time prior to 2000, defendant entered into a contract
with plaintiff for a promotional program called T3. (Compl. ¶ 6.)
The requirements of the T3 program included the following:
"Dealer*fn2 shall incorporate into its retail
business, the T3 Private Brand Retail Credit Card
"Dealer shall actively participate in all required T3
Certified Tire Center programs that are offered by
Tire Centers and shall have the right to participate
in optional programs"; and
"Dealer agrees to pay Tire Centers certain sums
intended to cover a portion of the Tire Center[`]s
costs in implementing the T3 program."
(Compl. ¶ 7.) On March 27, 2003, defendant discontinued use of
the credit cards, issued by Household Finance, and removed
plaintiff's Household Finance credit card machine, stating that
it would be replaced*fn3
by a GE Capital Corporation-issued
credit card machine. Then, in 2004 (the month is not identified
in the complaint), plaintiff was informed (evidently by defendant) that his credit card machine would not be replaced.
(Compl. ¶ 11.) Plaintiff also states he was not timely provided
with promotional materials as required by the contract, and was,
as a result, forced to purchase promotional material at his own
expense. (Compl. ¶ 12.) Notwithstanding defendant's breaches,
plaintiff was still obligated to pay $100 per month for the
entire period of the contract. (Compl. ¶ 14.) Plaintiff
terminated the contract in June 2004. (Compl. ¶ 13.)
The complaint raises four claims for relief: breach of
contract; negligence; fraud; and unjust enrichment. Defendant
moves to dismiss all but the breach of contract claim, arguing
that all of plaintiff's causes of action sound in contract only.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
well-pleaded factual allegations of the complaint must be
accepted as true. See e.g., Square D Co. v. Niagara Frontier
Tariff Bureau, 476 U.S. 409, 411 (1986); Scheuer v. Rhodes,
416 U.S. 232, 236 (1974); Conley v. Gibson, 355 U.S. 41, 45-46
(1957). In considering such motions, the Court must read the
complaint liberally, drawing all inferences in favor of the
pleader. Conley, 355 U.S. at 45-46. The motion to dismiss
should be denied "unless it appears to a certainty that a
plaintiff can prove no set of facts entitling him to relief."
Ryder Energy Dist. Corp. v. Merrill Lynch Commodities,
748 F.2d 774, 779 (2d Cir. 1984). Despite the liberality of this standard,
only the "well-pleaded" factual allegations will be taken as
true. Papasan v. Allain, 478 U.S. 265, 283 (1986); Haviland v.
J. Aron & Co., 796 F. Supp. 95, 97 (S.D.N.Y. 1992), aff'd,
986 F.2d 499 (1992). Conclusory statements that fail to give notice
of the basic events of which the plaintiff complains need not be
credited by the Court. Haviland, 796 F. Supp. at 97; Duncan v.
AT & T Communications, 668 F. Supp. 232, 234 (S.D.N.Y. 1987) (citing Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987)).
As mentioned above, defendant argues that plaintiff's claims
arise only in contract, that his assertion of causes of action
for negligence and fraud is improper, and his cause of action for
unjust enrichment is duplicative of his contract claim. The Court
First, regarding the neglience claim,
[i]t is a well-established principle that a simple
breach of contract is not to be considered a tort
unless a legal duty independent of the contract
itself has been violated. This legal duty must spring
from circumstances extraneous to, and not
constituting elements of, the contract, although it
may be connected with and dependent upon the
Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382,
389 (1987) (citations omitted).*fn4
fails to plead any such duty. In fact, it refers only to
defendant's obligations under the contract and a representation
that the removed credit card machine would be replaced. (Compl.
¶¶ 7, 9.) Neither in the factual recitation, nor elsewhere in the
complaint, is there any reference to duties independent of the
Second, the fraud claim does not meet the pleading requirements
in the Federal Rules of Civil Procedure, which require that, "In
all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity." FED. R.
CIV. P. 9(b). In his complaint, plaintiff claims that "[t]he
acceptance of plaintiff's money, without providing the services
which were contracted for, was done intentionally and with
intent to defraud the plaintiff." (Compl. ¶ 24 (emphasis added).)
Moreover, plaintiff's allegations do not meet the requirements
for a cause of action sounding in fraud: The essential elements of a cause of action for fraud
are "representation of a material existing fact,
falsity, scienter, deception and injury" (Channel
Master Corp. v. Aluminium Ltd. Sales Corp., 4 N.Y.2d
 at 407 , supra). At the very threshold,
then, plaintiff must allege a misrepresentation or
material omission by defendant, on which it relied,
that induced plaintiff to purchase the policy of
insurance. General allegations that defendant entered
into a contract while lacking the intent to perform
it are insufficient to support the claim.
New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318
(1995) (some citations omitted). Plaintiff's fraud claim amounts
to no more than a general allegation that defendant entered into
the contract without an intent to perform.
Finally, defendant moves to dismiss plaintiff's unjust
enrichment claim on the ground that "plaintiff is not entitled to
recover in quasi-contract when an express written agreement
governs the obligations of the parties, and where plaintiff has
asserted a cause of action for breach of that express written
agreement." (Def.'s Mem. of Law at 7.) New York law is clear
that, "[a] claim for unjust enrichment, or quasi contract, may
not be maintained where a contract exists between the parties
covering the same subject matter." Goldstein v. CIBC World Mkts.
Corp., 6 A.D.3d 295, 296 (N.Y.App. Div. 2004) (citing
Clark-Fitzpatrick, 70 N.Y.2d 382, 388). The complaint clearly
relies on a written contract, ...