Opinion
97-CV-0875E(Sr)
April 10, 2001
John M. Curran, Esq., c/o Phillips et al., Buffalo, NY, Barry L. Radlin, Esq., Amherst, NY, Attorneys for the Plaintiff.
Randall D. White, Esq., c/o Connors Vilardo, Buffalo, NY, David R. Irvin, Esq., c/o Moynahan, Irvin Smith, Nicholasville, KY, Attorneys for Defendant.
MEMORANDUM and ORDER
Plaintiff originally commenced this action in the New York State Supreme Court for Erie County August 21, 1997. By Notice of Removal filed November 7, 1997 this action was removed to this Court on the basis of diversity of citizenship. See 28 U.S.C. § 1332 1441. Presently before this Court are the parties' competing motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Defendants' motion will be granted, plaintiff's motion will be denied as moot and this action will be closed.
Except where otherwise noted, the following facts are not in dispute. Plaintiff, a New York corporation with its principal place of business in West Seneca, N.Y, is in the business of quarrying, processing, producing and supplying crushed stone and hot-mix asphalt concrete. Compl. ¶¶ 1, 3. Defendants R.J. Corman Railroad Corporation ("RJCC"), R.J. Corman Railroad Company/Allentown Lines, Inc. ("RJCA"), R.J. Corman Companies and R.J. Corman Railroad Company/Material Sales ("RJCM") are all non-New York corporations with their principal places of business in Nicholasville, Ky. Notice of Removal ¶¶ 5, 6. The Corman defendants are all owned and controlled by Richard J. Corman.
Defendants argue that, insofar as plaintiff's action pertains to RJCC, such action must be dismissed for lack of jurisdiction over the person. Defendants also argue that, insofar as plaintiff asserts claims against R.J. Corman Companies, such action must be dismissed because R.J. Corman Companies is not a legal entity which has the capacity to be sued. However and in light of the fact that defendants' motion for summary judgment will be granted, such determinations are not required.
By Notice of Exemption dated July 2, 1996, Consolidated Rail Corporation ("Conrail") informed the Surface Transportation Board ("STB") of its intent to abandon a 5.1 mile portion of a railroad line located in Erie County. Defs.' Statement of Undisputed Facts ("Defs.' Statement") ¶ 1; Pl.'s Statement of Material Facts in Dispute ("Pl.'s Resp.") ¶ 1. In particular, Conrail sought to abandon a portion of the "Walden Running Track between railroad mile post 414.00 +- and railroad mile post 418.50 +-, and a portion of the J.D. Industrial Track between railroad mile post 0.00 +- and railroad mile post 0.60 +- in Erie County" ("the railroad line"). A portion of said track runs through the middle of plaintiff's quarry. Defs.' Statement ¶¶ 2, 3; Pl.'s Resp. ¶ 3. Conrail's Notice of Exemption was published July 23, 1996 in the Federal Register. Defs.' Statement ¶ 4.
Such symbolization is equivalent to "+1-" which means "plus or minus."
By facsimile dated August 5, 1996, RJCA advised STB that it intended to submit an Offer of Financial Assistance ("OFA") to purchase the railroad line from Conrail. Id. ¶ 5. Inasmuch as RJCM had previously entered into a contract with Conrail to establish and operate a number of bulk material yards at numerous locations throughout the northeast United States — including one in the Buffalo, N.Y., area — in order to provide Conrail with certain railroad materials, RJCA sought to acquire the railroad line so that RJCM could establish a materials yard there. Defs.' Statement ¶¶ 6, 7, 8; Pl.'s Resp. ¶¶ 6, 7. On August 5, 1996 plaintiff learned that Conrail was seeking to abandon the railroad line, including that portion which runs through its quarry, and was itself interested in acquiring such line. Defs.'s ¶¶ 9, 10. Eleven days later and unbeknownst to plaintiff, RJCA sent STB its formal OFA. Defs.' Statement ¶ 11; Pl.'s Resp. ¶ 11. On or about the same time, Fred Finger, plaintiff's employee, spoke with Chuck Samul of Conrail regarding the railroad line, to which Samul apparently stated that Conrail had received a purchase offer for the railroad line and is presently negotiating with such party. Defs.' Statement ¶¶ 13, 14; Pl.'s Resp. ¶ 13. Samul also apparently stated to Finger that Conrail "expected to complete [those] negotiations and would not entertain any other . . . [offers] at this time." Defs.' Statement ¶¶ 14. Among other things, these negotiations would eventually result in an agreement that called for RJCA to purchase the railroad line from Conrail at a price of $88,000. Pl.'s Statement of Material Facts ("Pl.'s Statement") ¶ 1; Defs.' Resp. to Pl.'s Statement ("Defs.' Resp.") ¶ 1. On August 19, 1996 Barry I. Radlin, Esq., plaintiff's attorney, also spoke to Samul concerning the abandonment of the railroad line. Defs.' Statement ¶ 15. Samul informed Radlin that Conrail was negotiating with a prospective buyer and that no other offers would be entertained. Id. ¶ 16. That same day, Radlin also spoke with an attorney at STB who indicated that Conrail could sell the railroad line to anyone it chooses and that there was "virtually no way to stop [Conrail's] abandonment" or the sale of the rail line to another purchaser. Id. ¶¶ 17, 18.
The first contact that plaintiff had with defendants occurred when Joseph Laraiso, plaintiff's Executive Vice President, had a telephone conversation with Thomas Hammerstone, Executive Vice President of said defendants, August 20, 1996 during which Laraiso apparently told Hammerstone of plaintiff's concerns regarding the impact of Conrail's abandonment of the railroad line. Id. ¶ 19; Laraiso Dep. at 118. Such conversation was followed by an exchange between Radlin and Hammerstone August 22, 1996 wherein plaintiff's concerns regarding the abandonment of the railroad line were again. repeated to Hammerstone. Defs.' Statement ¶ 21; Radlin Dep. at 133.
Effective August 22, 1996, STB issued a Decision finding, inter alia, RJCA's OFA to be bona fide and postponing the forthcoming effective date of abandonment so as to grant Conrail and RJCA time to permit "OFA process" to go forward. Defs.' Statement ¶ 12; Pl.'s Resp. ¶ 12; Notice of Motion Ex. M (STB Decision).
By letter dated August 23, 1996 and after a series of conversations between Radlin and Hammerstone which had occurred over a period of days postdating the date of that letter, Hammerstone, on behalf of defendants, stated, in relevant part, the following:
"The purpose of this letter is to demonstrate our good faith intentions towards conducting future business with your company. I would like to assure you of the following:
— The R.J. Corman Railroad Company will provide your company with a minimum of a permanent easement upon the entire "right-of-way" . . . [from Mile post 414.0] to a point at or near Harris Road. This will be for a reasonable and customary fee with an appropriate indemnification for the railroad.
— The R.J. Corman Railroad Company will work towards consummating the sale of this property to your company as soon as legally permissible, for a reasonable price.
— The R.J. Corman Railroad Company will provide on-going rail freight transportation services to your company at competitive rates for as long as we own the railroad.
Presumably, RJCA.
Presumably, RJCC.
"We very much appreciate the potential property lease offer that you mentioned may be available to our material sales company.
". . . Once we acquire [the railroad line], we will keep you informed of our intentions to sell, relinquish or abandon property and will offer Buffalo Crushed Stone Company the right of first refusal.
"I hope this letter adequately summarizes our business discussions this week . . .." Defs.' Notice of Motion Ex. R ("The Hammerstone Letter"); Defs.' Statement ¶¶ 22-27. The Hammerstone letter was apparently finalized and sent to plaintiff on or about August 28, 1996. Id. ¶ 28.
By letter dated September 18, 1996, RJCA and Conrail notified STB that they had entered into a purchase agreement with respect to the railroad line and requested STB's approval of the transaction. Id. ¶ 28; Defs.' Notice of Motion Ex. S. STB issued an order September 26, 1996 authorizing RJCA to acquire the railroad line. Defs.' Statement ¶ 29; Pl.'s Resp. ¶ 29. Such acquisition was consummated December 16, 1996 and RJCA closed on its purchase of the railroad line.
At about this same time, plaintiff made available to RJCM seven acres
land owned by plaintiff near the railroad line for establishment of a materials yard ("the Site") and provided the stone and overburden for paving the Site. Defs.' Statement ¶ 32; Pl.'s Mem. of Law at 7; Gupton Dep. at 37-39. Hammerstone also directed an employee, Pell Brown, to prepare and forward to plaintiff a proposed lease ("the Pell Brown lease") regarding, inter alia, the promised easement over the railroad line. Pl.'s Notice of Motion Ex. 6; Brown Aff. ¶ 8. Such apparently occurred December 6, 1996. Id. According to the Pell Brown lease, defendants would grant to plaintiff the promised easement for a period of five years in consideration for the annual sum of $1. Id. Moreover, Radlin continued to have discussions with defendants regarding the sale of a portion of the railroad line to plaintiff and, in addition, the terms of RJCM's use of the Site. Defs.' Notice of Motion Exs. O, P.
By letter dated March 4, 1997, Radlin sent defendants a draft of a proposed agreement ("the Radlin Proposal") with respect to these issues. Defs.' Notice of Motion Ex. V. As was the case regarding the Pell Brown lease, such agreement was never executed. On or about the same time, plaintiff filed with the Town of Lancaster an "Application for Site Plan Approval" with respect to RJCM's use of the Site. Defs.' Statement ¶ 42; Defs.' Notice of Motion Ex. W Plaintiff discovered, however, that such an application would require a change in the zoning of the property, from a classification which permitted mining to one that did not. Id. ¶ 43. Such a change was unacceptable to plaintiff, inasmuch as it would prohibit plaintiff's further mining of the Site. Id. Plaintiff then applied for a "Temporary and Revocable Permit." Defs.' Notice of Motion Ex. X.
At approximately the same time and because RJCM had already commenced operations at the Site without governmental approval, the Town of Lancaster wrote defendants and stated that, unless it ceased "conducting business and storing materials" at the Site, the Town of Lancaster would take legal action to stop such business operations. Id. Ex. Z. Defendants then removed their materials from the Site, purchased an alternative site in Pennsylvania and relocated its materials sales yard to that location. Defs.' Statement ¶ 36.
On March 9, 1998 plaintiff filed a petition with STB seeking, inter alia, to vacate Conrail's Notice of Exemption, claiming that it contained false or misleading information. See In re Consolidated Rail Corp. — Abandonment Exemption — in Erie County, NY, STB Docket No. AB-167, 1998 WL 693308 (I.C.C. Sept, 28, 1998). Plaintiff also argued that, should STB not revoke the sale on that basis, revocation of defendants' acquisition of the railroad line was still required because defendants had not provided plaintiff rail service as required under 49 U.S.C. § 10904 (f)(4)(A). Plaintiff also filed a complaint with STB March 6, 1998 alleging that defendants had violated 49 U.S.C. § 10702 and § 10741(a) by refusing to serve plaintiff under rates and conditions equivalent to those offered to other similarly situated shippers, and by discriminating against plaintiff. See Buffalo Crushed Stone, Inc. v. R.J. Corman Railroad Company/Allentown Lines, Inc., STB Docket No. 42048, 1998 WL 693308 (I.C.C. Sept. 28, 1998). As relief, plaintiff requested damages from lost sales stemming from defendants' alleged refusal to provide rail service and requested that STB require defendants to grant plaintiff trackage rights over the railroad line so as to enable plaintiff to obtain common carrier service from a different carrier. In denying the petition to vacate the abandonment exception, STB ruled that, were it "to revoke the exemption as requested by BCS, [such] action would not only adversely affect Conrail, but it would also negate a purchase by an innocent third party, [RJCA], which invoked section 10904 in the good faith belief that, if it complied with the statutory standards and procedures, it would acquire the line." STB Decision, at *7 STB stated that to hold otherwise would force "[p]urchasers acquiring lines under that provision . . . to worry that their rights to the lines they acquire might be abrogated months and perhaps years later because of some defect in the underlying abandonment." Ibid. In granting defendants' motion to dismiss the complaint, STB stated that, "even if the alleged facts are presumed to be true and are considered in a light most favorable to BCS," the complaint "fails to state reasonable grounds for investigation and action." Ibid. On appeal to the District of Columbia Circuit Court of Appeals, STB's decision with respect to denying the petition was affirmed. See Buffalo Crushed Stone, Inc. v. Surface Transp. Board, 194 F.3d 125 (D.C. Cir. 1999). Plaintiff did not appeal STB's dismissal of the complaint.
Such section states, in relevant part, that "[n]o purchaser of a [a railroad] line or portion of line sold under this section may transfer or discontinue service on such line prior to the end of the second year after consummation of the sale, nor may such purchaser transfer such line, except to the rail carrier from whom it was purchased, prior to the end of the fifth year after consummation of the sale."
Section 10702 states that "[a] rail carrier providing transportation or service subject to the jurisdiction of the Board under this part shall establish reasonable —
(1) rates . . . and classifications for transportation and service it may provide under this part; and (2) rules and practices on matters related to that transportation or service."
Section 10741(a), in relevant part, states that "[a] rail carrier providing transportation or service subject to the jurisdiction of the Board under this part may not subject a person, place, port, or type of traffic to unreasonable discrimination" and that "a rail carrier engages in unreasonable discrimination when it charges or receives from a person a different compensation for a service rendered, or to be rendered, in transportation the rail carrier may perform under this part than it charges or receives from another person for performing a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances."
STB issued a single decision denying the petition and dismissing the complaint. For convenience, such decision will be referred to as "STB Decision."
Buffalo Crushed Stone, Inc.
According to the complaint filed in this action, plaintiff asserts eight causes of action against defendants — viz., breach of contract, anticipatory repudiation, promissory and equitable estoppel, fraud, intentional misrepresentation, unjust enrichment, declaratory relief, and specific performance. In response, defendants assert a counterclaim for breach of contract. Pursuant to FRCvP 56(c), summary judgment on these claims "shall be rendered forthwith . . . if there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." A factual dispute is material if its resolution "might affect the outcome of the suit under the governing law" and is genuine if it reasonably could be resolved in favor of any party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Evidence submitted by the non-moving party is to be believed and all justifiable inferences are to be drawn in such party's favor. Anderson, at 255.
Assuming that a contract had been executed between the parties, defendants first argue that plaintiff's claim for specific performance, as such pertains to property rights over that portion of the railroad line which traverses the quarry, is within the exclusive jurisdiction of STB and that, therefore, this Court lacks the jurisdiction to order such relief. See 49 U.S.C. § 10501 (b) (stating that the jurisdiction of STB over the "acquisition, operation, abandonment, or discontinuance" of railroad lines "is exclusive"). In response, plaintiff argues that, inasmuch as the grant of specific performance will not interfere with rail operations, STB has no jurisdiction over plaintiff's claim for specific performance.
Notwithstanding plaintiff's argument, the undersigned finds that STB is the agency which, at the present time, has jurisdiction over the determination of whether or not the granting of such a property right would adversely affect common carrier obligations. Firstly, the plain language of the Interstate Commerce Act, 49 U.S.C. § 10101 et seq., commits the resolution of this issue to STB. Secondly — and perhaps just as importantly —, STB, given its far greater and unique experience in dealing with such matters, is far better suited than any court to uniformly apply national rail policy. In this regard, plaintiff has pointed to no case where a court, rather than STB, has been the first to decide whether an acquisition by a non-railroad carrier, such as plaintiff, of property rights in a railroad line will or will not interfere with a common carrier's ability to provide rail service over such line. Rather, an analysis of relevant authority shows that it has long been the practice, where such interests are to be transferred, for such proposals be "submitted to [STB] in advance, together with a copy of the agreement between the railroad and the entity acquiring its right-of-way, for a jurisdictional determination." State of Me., Dep't of Transp. — Acquisition and Operation Exemption — Me. Cent. R.R. Co., 8 I.C.C.2d 835, 838 (1991). Consequently, before STB has made such a determination, this Court lacks jurisdiction to hear such claims.
Similarly plaintiff's argument that, because STB in its decision stated "that it has no authority over rates for movement of crushed stone because crushed stone is a commodity exempt from STB regulation," this Court may hear these type of claim is unavailing. See G T. Terminal Packaging v. Consolidated Rail, 830 F.2d 1230, 1234-1235 (3rd Cir. 1987) (noting that "an interpretation which viewed exempted rates as removed from the jurisdiction of [STB] would be inconsistent with the statutory scheme, which provides for[STB's] ongoing jurisdiction over exempt traffic" and, "[i]f another body were allowed to replace the regulatory restrictions dismantled at [STB], the agency's exemptive actions would be nugatory").
Defendants also argue that, insofar as plaintiff asserts claims regarding their alleged failure to provide common carrier rail transportation service, such claims are barred by operation of the doctrine of res judicata. The undersigned agrees. "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United States v. Utah Constr. Co., 384 U.S. 394, 422 (1966). Three factors are said to be determinative — first, whether the agency was acting in a judicial capacity; second, whether the issue presented to the district court had been actually litigated before the agency; and, third, whether its resolution had been necessary to the agency's decision. West Coast Truck Line v. American Industries, 893 F.2d 229, 234-235 (9th Cir. 1990). Turning to the second element first — i.e., whether the issue sought to be litigated was tried before the administrative agency —, the Complaint contains a number of allegations that defendants have unlawfully failed to provide rail transportation for plaintiff's products and have otherwise wrongfully demanded exorbitant fees in connection therewith. See Compl. ¶¶; 22, 28, 32, 49, 53. These allegations, however, have previously been presented to STB. See Notice of Motion Ex. AB (Complaint filed with STB). With respect to the first factor, there can be no dispute that, in conducting a hearing which allowed for the presentation of evidence, STB acted in a judicial capacity when it issued its decision. Finally and with respect to the third factor, STB's finding that such allegations failed to state "reasonable grounds" for action was necessary to its dismissal of the complaint pending before it. Consequently and by operation of the doctrine of res judicata, plaintiff may not reassert in this Court its previous claims which allege that defendants violated their common carrier duty to provide rail transportation service to plaintiff. Relatedly, any claim for lost profits premised on such conduct is similarly barred.
Turning directly to the heart of defendants' motion, they argue that plaintiff's claims of breach of contract and anticipatory repudiation fail because a contract was never executed between the parties. As set forth in its motion for partial summary judgment and in response to defendants' motion, plaintiff argues that the Hammerstone letter, the Pell Brown lease, the Radlin proposal and related writings all evidence the existence of a valid and enforceable contract, so much so that plaintiff has based its motion on the ground that defendants promised to convey to plaintiff a permanent easement over the railroad line and failed to do so.
To the extent that plaintiff alleges a claim for specific performance — a discretionary remedy which is an alternative to the award of damages as a means of enforcing a contract —, whether or not such is ultimately cognizable depends upon its success on its breach of contract claims.
In determining whether a contract exists, plaintiff bears the burden of establishing all material terms of the alleged contract with sufficient definiteness to enable this Court to interpret its terms and must establish that there was a meeting of the minds which demonstrated the parties' mutual assent and intent to be bound. See Express Industries and Terminal Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589-590 (1999). "Dictated by these principles, it is rightfully well settled in the common law of contracts in this State that a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable." Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109 (1981). Moreover, where interests in real property are at issue, New York law requires that any conveyance thereof be in writing and subscribed by the person to be charged. N.Y Gen. Oblig. Law § 5-703 (Statute of Frauds). "This writing must be sufficiently certain so that the full intention of the parties can be ascertained from it alone, without recourse to parol evidence, including the identity of the parties, a description of the property and the purchase price." Morgan v. Kunker, 704 N.Y.S.2d 158, 159 (App.Div. 3rd Dep't. 2000). The statute of frauds does not, however, require the writing to be completely embodied in one document. It may be stitched together out of separate writings, signed or unsigned, so long as they are "connected with one another either expressly or by the internal evidence of subject-matter and occasion" and provided that they clearly refer to the same subject matter or transaction. Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 54-55 (1953).
Internal quotation marks and citations omitted.
Pursuant to these rules, the undersigned's review of the materials purporting to comprise the contract reveals no such agreement. Firstly, the Hammerstone letter, which plaintiff believes to be the principal contractual document in this action, can be construed as nothing more an agreement to agree. In this regard, the letter is plainly deficient in setting forth the material terms of the transactions referred to therein. It sets forth no timetable or schedule for the performance of any obligation, it fails to specify what type of interest will be conveyed, its language is replete with and couched in terms associated with preliminary discussions — e.g., "towards conducting future business," "as soon as legally permissible," "potential property lease," "will keep you informed," "summarizes our business discussions" — and, most importantly, it never specifies the amount of consideration to be tendered. Secondly, the Pell Brown lease does nothing to remedy missing material terms. For example, not only was it never signed, its revisions are marked "Draft" and the property interest described therein was apparently misidentified. See Pl.'s Notice of Motion Ex. 6. In fact, plaintiff's own attorney in March 1997 indicated that he believed the unexecuted Pell Brown lease "could use revision or clarification." Defs.' Notice of Motion Ex. V (cover letter to the Radlin proposal). In short, such writing is only evidence of the parties' ongoing business negotiations and not of any contract. Finally, the Radlin proposal — itself being unsigned and unexecuted — is nothing more than evidence of further negotiations. If anything, the language contained in the cover letter accompanying such proposal underscores the fact that no enforceable agreement had yet been reached with respect to the subject matter of the Hammerstone letter and the Pell Brown lease. Id. (stating that the Hammerstone letter and the Pell Brown lease have been "incorporated" into the Radlin proposal). In sum, there are no writings evidencing any type of contract made between the parties, the New York Statute of Frauds has not been satisfied and plaintiff's breach of contract action and anticipatory repudiation claims fail.
Plaintiff argues that, pursuant to any number of methods, a "reasonable price" for performance can be calculated. What plaintiff fails to consider, however, is that some objective basis for that "reasonable price" be found in the writing evidencing the agreement. See Joseph Martin, Jr., Delicatessen, Inc., at 110 ("It certainly would have sufficed, for instance, if a methodology for determining the [price] was to be found within the four corners of the [contract], for a [price] so arrived at would have been the end product of agreement between the parties themselves. Nor would the agreement have failed for indefiniteness because it invited recourse to an objective extrinsic event, condition or standard on which the amount was made to depend."). There is no such methodology, event, condition or standard set forth in the Hammerstone letter.
Relatedly, plaintiff argues that, insofar the Statute of Frauds is applicable to this matter, the doctrine of part performance estops defendants from asserting such defense. "The doctrine of part performance may be invoked only if plaintiff's actions can be characterized as `unequivocally referable' to the agreement alleged." Anostario v. Vicinanzo, 59 N.Y.2d 662, 664 (1983). "[T]he actions alone must be `unintelligible or at least extraordinary,' explainable only with reference to the oral agreement" and not, for example, "explainable as preparatory steps taken with a view toward consummation of an agreement in the future." Ibid.; see also Merill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 122 (2d Cir. 1998) ((citing Anostario and noting that, "where the performance is `reasonably explained' by the possibility of other reasons for the conduct, the performance is equivocal"). Plaintiff argues that the Hammerstone letter and the Pell Brown lease "clearly demonstrate a contract between Corman and BCS for the grant of a permanent easement to BCS over that portion of the right of way which traversed BCS's property; the sale of that portion of the right of way which traversed BCS's property to BCS as soon as legally permissable; and the right of first refusal by BCS over the remainder of the former Conrail right of way. Pl.'s Mem. of Law in Opp'n at 39. Plaintiff states that "[i]n accordance with the terms of these agreements . . ., BCS refrained from challenging Corman's Acquisition of the Conrail right of way; allowed Corman to construct the materials storage yard upon its property; provided materials to Corman for the construction of the materials yard; and sought approval from the Town of Lancaster for Corman to operate the materials storage yard." Ibid. Such arguments are unavailing. Firstly, plaintiff's inaction with regard to its failure to timely challenge defendants' acquisition of the property is equally attributable to the fact that Conrail represented to plaintiff that it would entertain no other offers with respect to the railroad line and to the fact that an attorney at STB stated to plaintiff that there was virtually no way to stop Conrail's abandonment proceeding. Secondly, plaintiff's willingness to accommodate defendants interests is also equally attributable to its belief that a "it would have a stranger down the middle of its quarry who, to its knowledge at the time, did not have the obligation to continue operating the railroad." Pl.'s Mem. of Law at 4. In short and because the performance undertaken by plaintiff is explainable as preparatory steps taken with a view toward consummation of an agreement in the future, its performance is not "unequivocally referable" to the alleged agreement and the doctrine of part performance has no application to the matters present in this action.
Defendants also argue that, insofar as plaintiff alleges claims premised on fraud and intentional misrepresentation, such claims fail because plaintiff has merely recast his arguments for breach of contract and, in any event, cannot show causation. The undersigned agrees. "The essential elements of a cause action for fraud are `representation of a material existing fact, falsity [as to that fact], scienter, deception and injury.'" New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318 (1995) (quoting Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 407 (1958). Under New York law, moreover, "a separate cause of action seeking damages for intentional fraud cannot stand when the only fraud alleged relates to breach of a contract." Rocco v. Town of Smith town, 645 N.Y.S.2d 187, 188 (App.Div. 4th Dep't 1996). Plaintiff alleges that, inter alia, defendants made false representations to it so as to induce plaintiff to not interfere in defendants' acquisition of the railroad line and negotiate favorable terms for the creation and operation of a material storage yard on plaintiff's property. Pl.'s Mem. of Law in Opp'n at 41. These allegations are not, however, sufficiently collateral to the breach of contract claims such that they may stand independently from those claims. Allegations that one party "did not intend to perform a contract does not amount to a cause of action for fraud." Kamyr, Inc. v. Combustion Eng'g, 603 N.Y.S.2d 451, 451 (App. Div. 1st Dep't 1993). In addition, there is simply no proof in the record that, at the time any of the alleged promises was made, defendants lacked the intention to consummate such deal. "Mere allegations are insufficient; plaintiff `must allege facts to show that the defendants, at the time the promissory representation was made, never intended to honor or act on [its] statement.'" Songbird Jet Ltd., Inc. v.Amax, Inc., 581 F. Supp. 912, 925 (S.D.N.Y 1984 (quoting Roney v. Janis, 430 N.Y.S.2d 333, 335 (1980)). With respect to causation and reliance, plaintiff's fraud and intentional misrepresentation claims find further obstacle — viz., there are no facts showing that defendants made misrepresentations to plaintiff as to the acquisition of the railroad line. If any such misrepresentation was made, such was done by third parties not associated with defendants. In short, plaintiff's claims premised on fraud and intentional misrepresentation fail for lack of proof.
Internal quotation marks and citations omitted.
Insofar as plaintiff alleges claims sounding in both promissory and equitable estoppel, defendants argue that such must be dismissed because there has been no showing that its words or conduct created some type of promise upon which plaintiff could have reasonably relied and suffered injuries therefrom. Ionosphere Clubs, Inc. v. Insurance Co. of Pa., 85 F.3d 992, 999 (2d Cir. 1996). The undersigned agrees. Quite simply and as set forth previously, the undisputed facts are not indicative of any words or conduct on the part of defendants that can be construed as a material misrepresentation and/or an unambiguous promise upon which justifiable reliance could be placed. Moreover, the injuries plaintiff claims — for example, the imposition of unreasonable fees and the "pave-over" of certain portions of the right of way — that have allegedly resulted from defendants' alleged inequitable conduct have already been considered by another tribunal and found to be without merit.
Relatedly, plaintiff's claim for unjust enrichment fails for any one of a number of reasons, but principally because it has failed to show how defendants were unjustly enriched at plaintiff's expense. The doctrine of unjust enrichment comes into play when an individual is `in possession of money or property which in good conscience and justice he should not retain but deliver to another.'" Songbird Jet, at 926. To prevail, plaintiff must show that defendants were enriched and that, as between defendants and plaintiff, the enrichment was unjust. Ibid. In this action, there is no dispute that plaintiff still retains ownership and control over all the materials and property which it had previously provided to defendants. Consequently, it is specious to suggest that defendants have been unjustly enriched by such arrangement. In light of such non-enrichment, plaintiff's claim can be construed to be nothing more than an attempt to recoup the costs of failed negotiations, for which a claim of unjust enrichment is not appropriate. Metal Cladding, Inc. v. Brassey, 553 N.Y.S.2d 255, 255 (App.Div. 4th Dep't 1990).
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted, that plaintiff's motion for partial summary judgment is denied as moot, that plaintiff's Complaint is dismissed and that this case shall be closed.