FILED: NEW YORK COUNTY CLERK 07/21/ :15 PM INDEX NO /2015 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/21/2015

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1 FILED: NEW YORK COUNTY CLERK 07/21/ :15 PM INDEX NO /2015 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/21/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X SUSTAINABLE PTE LTD., SURF HOTELS PTE LTD., : Hon. Anil C. Singh, J.S.C. GREGORY STUPPLER, and YUTA OKA, Index No /2015 Plaintiffs, : Motion Seq. No. - against - PEAK VENTURE PARTNERS LLC, OMAR AMANAT, PEAK HOTELS AND RESORTS LIMITED, : PEAK INVESTMENTS LIMITED, AMAN RESORTS : GROUP LIMITED, MANAMAN VENTURES PTE. : LTD., PEAK HOTELS AND RESORTS GROUP LIMITED, NADER TAVAKOLI, TAREK INVESTMENTS LIMITED, VLADISLAV DORONIN, : ALAN DJANOGLY, JOHAN ELIASCH, and SHERWAY GROUP LIMITED, Defendants. X MEMORANDUM OF LAW IN SUPPORT OF VLADISLAV DORONIN'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT Paul M. O'Connor III Emilie B. Cooper Jennifer McDougall Kasowitz, Benson, Tones & Friedman LLP 1633 Broadway New York, New York Tel: (212) Attorneys for Defendant Vladislav Doronin

2 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 3 A. Sale Of Aman Resorts 3 B. The SURF Agreement 4 C. The Aman Resorts Acquisition 6 D. Amanat's Inability To Fulfill His Financial Obligations 8 ARGUMENT 9 I. II. PLAINTIFFS FAIL TO STATE A CLAIM FOR TORTIOUS INTERFERENCE WITH THE SURF AGREEMENT 10 PLAINTIFFS FAIL TO STATE A CLAIM FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE 13 A. Plaintiffs Fail To Allege A Claim Based On Interference With The Ongoing Business Relationship Contemplated By The SURF Agreement 13 B. Plaintiffs Cannot Allege Tortious Interference With Defendants' Own Promises And Representations 14 C. Plaintiffs Do Not Sufficiently Allege Wrongful Conduct By Doronin 15 i. Doronin's Sole Motivation Was Not Malice 15 ii. Doronin Did Not Commit Independently Tortious Or Criminal Behavior 16 III. PLAINTIFFS FAIL TO STATE A CLAIM FOR FRAUD 17 A. Misrepresentations By Amanat Are Insufficient To State A Claim Against Doronin 17 B. The Shareholders' Agreement Cannot Support A Claim For Fraud By Plaintiffs 18 C. Statements In Unexecuted Agreements Cannot Constitute Misrepresentations On Which Plaintiffs Justifiably Relied 19 D. The Letter Agreement Further Undermines Any Contention Of Justifiable Reliance 20

3 IV. PLAINTIFFS' CIVIL CONSPIRACY CLAIM FAILS ALONG WITH ITS TORT AND FRAUD CLAIMS 21 V. THE SURF AGREEMENT PRECLUDES PLAINTIFFS' CLAIM FOR UNJUST ENRICHMENT 23 CONCLUSION 25 ii

4 TABLE OF AUTHORITIES Page(s) Cases 1411 Broadway Rest., Inc. v. Keystone Assocs., 237 A.D.2d 190 (1st Dep't 1997) Assocs., LP v. City of N. Y, 91 A.D.3d 519 (1st Dep't 2012) 21 Agostini v. Sobol, 304 A.D.2d 395 (1st Dep't 2003) 22 Algomod Techs. Corp. v. Price, 65 A.D.3d 974 (1st Dep't 2009) 22 Matter of Allen v. Strough, 301 A.D.2d 11 (2d Dep't 2002) 12 AQ Asset Mgt., LLC v. Levine, 119 A.D.3d 457 (1st Dep't 2014) 24 Bango v. Naughton, 184 A.D.2d 961 (3d Dep't 1992) 21 Bannister v. Agard, 125 A.D.3d 797 (2d Dep't 2015) 22 Beecher v. Feldstein, 8 A.D.3d 597 (2d Dep't 2004) 12 Briarpatch Ltd., L.P. v. Frankfurt, Garbus, Klein & Selz, P.C., 13 A.D.3d 296 (1st Dep't 2004) 19 Brualdi v. IBERIA, 79 A.D.3d 959 (2d Dep't 2010) 18 Burrowes v. Combs, 25 A.D.3d 370 (1st Dep't 2006) 10 Caniglia v. Chicago Tribune-N.Y. News Syndicate, Inc., 204 A.D.2d 233 (1st Dep't 1994) 9 Carvel Corp. v. Noonan, 3 N.Y.3d 182 (2004) 15, 16 iii

5 CIFG Assur. N. Am., Inc. v. Bank of Am., NA., 41 Misc.3d 1203(A) (Sup. Ct. N.Y. Cty. 2013) 18 Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382 (1987) 23 Colliton v. Cravath, Swaine & Moore LLP, No. 08 Civ. 0400, 2008 WL (S.D.N.Y. Sept. 24, 2008) 16 Cont'l Realty, LLC v. Kennelly Dev. Co., LLC, 19 Misc. 3d 1140(A), (Sup. Ct. Kings Cty. 2008) 19 Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777 (2012) 23 DDR Constr. Servs., Inc. v. Siemens Indus., Inc., 770 F. Supp. 2d 627 (S.D.N.Y. 2011) 22 De Santis v. City of Troy, 83 Misc. 2d 195 (Sup. Ct. Rensselaer Cty. 1975) 13 Dembeck v. 220 Cent. Park S., LLC, 33 A.D.3d 491 (1st Dep't 2006) 17 Escoett & Co. v. Alexander & Alexander, Inc., 31 A.D.2d 791 (1st Dep't 1969) 18 Ferrandino & Son, Inc. v. Wheaton Builders, Inc., LLC, 82 A.D.3d 1035 (2d Dep't 2011) 10 Fromowitz v. W. Park Assocs., Inc., 106 A.D.3d 950 (2d Dep't 2013) 20 Gallant v. Kanterman, 198 A.D.2d 76 (1st Dep't 1993) 22 Godfrey v. Spano, 13 N.Y.3d 358 (2009) 9 Goldin v. Tag Virgin Islands Inc., No /2013, 2014 N.Y. Slip. Op (U), (Sup. Ct. N.Y. Cty. May 20, 2014) 23 Goldstein v. CIBC World Mkts. Corp., 6 A.D.3d 295 (1st Dep't 2004) 23 Greenky v. Toussaint, No /07, 2009 N.Y. Slip. Op (U), (Sup. Ct. N.Y. Cty. Jan. 9, 2009) 12 iv

6 Harris v. Camilleri, 77 A.D.2d 861 (2d Dep't 1980) 20 InKine Pharm. Co. v. Coleman, 305 A.D.2d 151 (1st Dep't 2003) 14 Jebran v. LaSalle Bus. Credit, LLC, 33 A.D.3d 424 (1st Dep't 2006) 21 Jurlique, Inc. v. Austral Biolab Pty., Ltd., 187 A.D.2d 637 (2d Dep't 1992) 13, 16 Lockheed Martin Corp. v. Aatlas Commerce Inc., 283 A.D.2d 801 (3d Dep't 2001) 15 M.J. & K Co. v. Matthew Bender & Co., 220 A.D.2d 488 (2d Dep't 1995) 15 Mazzone v. Mazzone, 269 A.D.2d 574 (2d Dep't 2000) 18 Morgenthow & Latham v. Bank of N.Y. Co., 305 A.D.2d 74 (1st Dep't 2003) 3, 9, 10, 15 Oko v. Walsh, 28 A.D.3d 529 (2d Dep't 2006) 21 Parentebeard LLC v. Cohen, No /2010, 2011 N.Y. Slip. Op (U), (Sup. Ct. N.Y. Cty. June 22, 2011) 23 Phillips v. Carter, 58 A.D.3d 528 (1st Dep't 2009) 16 RGH Liquidating Trust v. Deloitte & Touche LLP, 71 A.D.3d 198 (1st Dep't 2009), rev'd on other grounds, 17 N.Y.3d 397 (2011) 12 Rivas v. Raymond Schwartzberg & Assocs., PLLC, 52 A.D.3d 401 (1st Dep't 2008) 14 Riverbank Realty Co. v. Koffman, 179 A.D.2d 542 (1st Dep't 1992) 23 Scarola Ellis LLP v. Padeh, 116 A.D.3d 609 (1st Dep't 2014) 24 Sch. of Visual Arts v. Kuprewicz, 3 Misc. 3d 278 (Sup. Ct. N.Y. Cty. 2003) 13 v

7 Schwartz v. Soc'y of N.Y. Hosp., 199 A.D.2d 129 (1st Dep't 1993) 22 Sirohi v. Lee, 222 A.D.2d 222 (1st Dep't 1995) 17 Steinberg v. Schnapp, 73 A.D.3d 171 (1st Dep't 2010) 14 Thome v. Alexander & Louis Calder Found., 70 A.D.3d 88 (1st Dep't 2009) 16, 21 Waggoner v. Caruso, 68 A.D.3d 1 (1st Dep't 2009) 21 Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536 (1st Dep't 2013) 3, 10 Weksler v. Kane Kessler, P.C., 63 A.D.3d 529 (1st Dep't 2009) 18 Other Authorities CPLR 3016(b) CPLR 3211(a)(1) passim passim CPLR 3211(a)(7) 1, 9 vi

8 Pursuant to CPLR 3211(a)(1) and (a)(7), and CPLR 3016(b), defendant Vladislav Doronin ("Doronin") respectfully submits this Memorandum of Law in Support of his Motion to Dismiss the First Amended Complaint. PRELIMINARY STATEMENT The entirety of this case centers on the obligations of two of the defendants, Omar Amanat ("Amanat") and his entity Peak Venture Partners LLC ("PVP"), pursuant to an agreement (the "SURF Agreement") that they entered into with one of the Plaintiffs, Sustainable PTE Ltd. ("Sustainable"). The First Amended Complaint -- like the original Complaint -- alleges that Amanat and PVP breached their obligations under the SURF Agreement, including their obligations to pay fees to Sustainable, and to cause Sustainable to be the asset manager of Aman Resorts. Accordingly, Plaintiffs have brought a cause of action against Amanat and PVP for breach of the SURF Agreement. However, Plaintiffs know that trying to recover from Amanat and PVP is fruitless because Amanat is a serial swindler who is facing multiple lawsuits and many debts, and PVP is a shell company with no collectible assets. Given this, in a transparent hunt for deep pockets, Plaintiffs trumped up claims and filed this action, indiscriminately naming 11 additional defendants -- essentially anyone who had even at the most a tangential role in the events surrounding Amanat and PVP's breaches of the SURF Agreement -- including Doronin. Several of the defendants moved to dismiss the Complaint originally filed by Plaintiffs. In response -- effectively conceding the inadequacies in their initial pleading -- Plaintiffs filed the First Amended Complaint. However, Plaintiffs' efforts to rectify the blatant shortfalls of the original Complaint are inadequate. Indeed, for the most part, all Plaintiffs have done in response to the original motions to dismiss is to formulaically attempt to recite some (but not all) of the elements that defendants pointed out were lacking, without alleging (as they must to survive

9 dismissal) any facts to support such conclusory allegations. Moreover, in the First Amended Complaint, Plaintiffs repeatedly omit and even flatly contradict many of the averments that they originally made, in an effort to overcome the logical contradictions in their theory that were highlighted in the original motions to dismiss. Put simply, Plaintiffs' fabricated causes of action do not withstand scrutiny and their claims against Doronin should be dismissed in their entirety. Indeed, Plaintiffs' tactics become all the more obvious when examining the First Amended Complaint's allegations against Doronin. None of the five causes of action that Plaintiffs purport to state against Doronin comes close to meeting the necessary pleading requirements. Specifically: Plaintiffs' claim for tortious interference with the SURF Agreement fails because the First Amended Complaint does not allege that Doronin did anything to interfere with Amanat and PVP's payment obligations pursuant to the SURF Agreement, much less that Doronin was the but for cause of Amanat and PVP's breach of the SURF Agreement. Plaintiffs' claim for tortious interference with prospective contractual relations fails because (i) Plaintiffs cannot allege but for causation, (ii) a claim for tortious interference cannot be based on business relationships to which the defendant in question is a party, and (iii) the First Amended Complaint fails to allege that Doronin engaged in wrongful conduct. Plaintiffs' claim for fraud fails because the First Amended Complaint does not allege actionable misrepresentations made by Doronin to Plaintiffs on which Plaintiffs justifiably relied. 2

10 Plaintiffs' claim for civil conspiracy fails because they have not stated a cognizable claim for tortious interference or fraud, and because the allegations in the original Complaint (which were conspicuously struck from the First Amended Complaint) conclusively negate the existence of any agreement amongst defendants to defraud Plaintiffs. Plaintiffs' claim for unjust enrichment fails because the services on which the claim is based are the services rendered pursuant to the SURF Agreement. Under well-established law, these abundant pleading failures -- which underscore Plaintiffs' desperate attempt to extend liability beyond Amanat and PVP -- require dismissal of the First Amended Complaint's claims against Doronin. STATEMENT OF FACTS For the purposes of this motion only, the allegations of the Complaint and the First Amended Complaint are accepted as true.' A. Sale Of Aman Resorts Aman Resorts is a luxury hotel brand, popular among wealthy travelers and celebrities. FAC 33, 34. In 2007, DLF Global Hospitality Limited ("DLF") acquired a controlling stake in Silverlink Resorts Limited (BVI) ("Silverlink"), a holding company which owned and 1 The Complaint and the First Amended Complaint are, respectively, attached as Exhibits 1 and 2 to the Affirmation of Jennifer McDougall filed herewith ("McDougall Aff"). The original Complaint is cited herein as "Compl. " and the First Amended Complaint is cited herein as "FAC." The allegations and averments made by Plaintiffs in the original Complaint constitute documentary evidence pursuant to CPLR 3211(a)(1), and may be considered by the Court on this motion. See Morgenthow & Latham v. Bank of N.Y. Co., 305 A.D.2d 74, 78 (1st Dep't 2003) (contradictory allegations in a previous pleading constitute documentary evidence that can "conclusively establish[] a defense to the asserted claims as a matter of law") (citations omitted); Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, (1st Dep't 2013) (same). Undefined terms in this Statement of Facts shall have the meaning ascribed in the First Amended Complaint. 3

11 operated the Aman Resorts and held its licenses and intellectual property. Id. 35. From 2011 through 2013, DLF sought to sell its interest in Silverlink. Id In July 2013, Amanat learned of DLF's desire to sell its interest in Silverlink, and contacted Davis Polk & Wardwell, a law firm representing and acting on behalf of DLF, to express an interest in acquiring Aman Resorts. Id. 38. DLF and Amanat thereafter entered into an agreement regarding the potential acquisition of Silverlink (the "Aman Resorts Acquisition"). Id. 39. After this agreement was executed, Amanat was introduced to Gregory Stuppler ("Stuppler") and Yuta Oka ("Oka") from whom he sought advice on the Aman Resorts Acquisition. Id. Amanat represented himself to Stuppler and Oka as a successful businessman with a proven track record in the investment and financial community. Id. 41. Among other things, Amanat stated that he was a "mega-success" in the world of technology and in Hollywood, claimed that he sold his company to E*Trade for $280 million, and that he held a stake in Summit Entertainment prior to its sale to Lionsgate for over $400 million. Id. Amanat represented that following Twitter's IPO, he would have over a billion dollars of liquid capital to invest in Aman Resorts. Id. B. The SURF Agreement On or about October 20, 2013, Sustainable, a company controlled by Stuppler and Oka, entered into the SURF Agreement with Amanat and his entity, PVP, pursuant to which Sustainable agreed to exclusively provide services to Amanat and PVP in connection with the Aman Resorts Acquisition. Id. vli 10, 45, 58. In exchange for Sustainable's provision of services to Amanat and PVP, the SURF Agreement granted Sustainable "four categories of valuable rights," all of which were obligations of Amanat and PVP, id. 42, 48-55: First, Sustainable was entitled to a "Success Fee" to compensate Sustainable for its provision of advice, support, and services to Amanat and PVP in connection 4

12 with the Aman Resorts Acquisition. Id. Ili This Success Fee was payable by Amanat and PVP upon the execution of a Purchase Agreement for the acquisition of Aman Resorts. Id. 50. Second, Amanat and PVP were required to pay Sustainable for all Reimbursable Expenses incurred in connection with the Services provided, including legal and specialist fees, salaries and other consideration for staff, and any legitimate out of pocket expenses. Id. 51. These Reimbursable Expenses were to be paid by Amanat and PVP periodically, upon request by Sustainable, with any remaining balances due upon the execution of a Purchase Agreement. Id. Additionally, Amanat and PVP agreed to pay for all expenses related to the execution of the SURF Agreement itself. Id. 52. Third, Amanat and PVP agreed to enter into an agreement in the future, pursuant to which Sustainable would provide asset management services for the Aman Resorts and be paid, by Amanat and PVP, for the provision of such services. Id. TT Finally, Amanat and PVP agreed to enter into a contract in the future to appoint Sustainable (or an affiliate of Sustainable) to provide LP Services post-closing.2 Id. 55. In exchange, Amanat and PVP agreed that they would "pay to Sustainable (or an affiliate of Sustainable) a 20% profit share in its profits." Id. In exchange for these "four categories of valuable rights," Sustainable agreed to exclusively provide services to Amanat and PVP with regard to the Aman Resorts Acquisition. 2 Neither the Complaint nor the First Amended Complaint provide a description of the specific LP Services to be provided by Sustainable, and Plaintiffs have not attached a copy of the SURF Agreement to either complaint. 5

13 Id. 48, 58. As alleged in the original Complaint, the exclusive nature of the contract was important to Amanat and PVP, as they did not want Sustainable, Stuppler, or Oka to leverage their expertise, experience, or contacts in the real estate and hotel investment communities for the benefit of others. Compl. 51. C. The Aman Resorts Acquisition On or about October 24, 2013, Amanat introduced Stuppler and Oka to Nader Tavakoli ("Tavakoli"), and educated Tavakoli concerning the details of the Aman Resorts Acquisition. FAC In At some point, Tavakoli told Alan Djanogly ("Djanogly") of the proposed deal, and Djanogly brought it to the attention of Doronin. Id Doronin was interested in the investment and on or about December 25, 2013, entered (in his personal capacity) into a Letter Agreement with Amanat -- through Amanat's corporate entity PVP -- concerning the Aman Resorts Acquisition. Id. 79. The Letter Agreement provided for the creation of a joint venture to acquire the Aman Resorts and set forth that PVP would be the controlling managing investor of Aman Resorts, and would receive incentive and other fees in connection with the Aman Resorts Acquisition. Id. 81. On January 2, 2015, Stuppler finalized the Share Purchase Agreement with DLF for the Aman Resorts Acquisition. Id On January 6, 2014, Stuppler was provided with a final version of the Letter Agreement executed by Amanat/PVP and Doronin, without Annex A thereto.4 Id. 80. The final version of the Letter 3 The Complaint and the First Amended Complaint make inconsistent allegations concerning when Tavakoli learned of the Aman Resorts Acquisition and when he shared that information with Djanogly. Compare Compl. In (describing a meeting on October 24, 2013 where Tavakoli was "educated" concerning the Aman Resorts transaction and that Tavakoli "thereafter disclosed the Aman Resorts opportunity to his close friend, Djanogly"), with FAC1166, ("Prior to the meeting on October 24, 2013, Tavakoli was already aware of Amanat's pursuit of Aman Resorts. Unbeknownst to SURF, at some time prior to or after that meeting, Tavakoli apparently disclosed the Aman Resorts opportunity and the SURF Agreement to his close friend Djanogly."). 4 The copy of the final version of the Letter Agreement that Stuppler received made no reference to Sustainable or the SURF Agreement, and omitted Annex A. Compare Compl. In (stating that the 6

14 Agreement that was sent to Stuppler conflicted with promises that Amanat had previously made to Sustainable, Stuppler and Oka. Id. in Almost immediately after the execution of the Letter Agreement, the relationship between Amanat and Doronin fell apart after Amanat failed to fund his share of the deposit required by the agreement between DLF and Aman Resorts Group Limited to acquire the Aman Resorts. Compl. 70. As a result, Doronin attempted (but failed) to close the Aman Resorts Acquisition directly with DLF, without Amanat. Id. Moreover, the hostility and lack of cohesiveness amongst the defendants continued even in the days after the closing of the Aman Resorts Acquisition, where celebration soon turned to visceral fighting. Id. 87; see also FAC 114. Despite Stuppler and Oka's earlier understanding that the Aman Resorts Acquisition would be effectuated through a particular entity, on January 14, 2014, Amanat established Peak Hotels and Resorts Limited ("PHRL") as the new parent corporation of the venture. Id. in 12, 85. On January 17, 2014, PHRL created Peak Hotels and Resorts Group Limited ("PHRGL") as a wholly-owned subsidiary. Id. 85. Amanat and Doronin negotiated the terms of the PHRGL shareholder agreement (the "Shareholders Agreement"), which was entered into by PHRL and Tarek Investments Limited ("TIL") (investment vehicles controlled by Amanat and Doronin, respectively) on January 31, Id. In 86, 93. PHRL appointed Amanat and Tavakoli as two of the directors of PHRGL, while TIL appointed Doronin and Djanogly as the other two directors of PHRGL. Id. 93. The acquisition of the Aman Resorts by PHRGL closed on February 7, Id version of the Letter Agreement that Stuppler received excluded Annex A), with FAC 1180, 82, 83 (omitting the fact that Annex A was excluded from the copy of the Letter Agreement sent to Stuppler). 7

15 Recognizing that PHRGL had no contractual obligation to pay Sustainable under the SURF Agreement, prior to the closing, Sustainable attempted to have Amanat and PVP's payment obligations assumed by or transferred to others. Id. TT 91, 97. All of these efforts failed. For example, in late January 2014, a draft Fee Letter contemplated that Sustainable would be paid $3 million in addition to their properly invoiced expenses as payment for the "Success Fee" under the SURF Agreement, and that half of this payment would be made by Amanat and PVP while the other half would be paid by TIL. Id. 89. While drafts of the Fee Letter were circulated among Doronin, Amanat, Stuppler, and the parties' attorneys, a final, consistent version of the Fee Letter was never executed by all of the parties. Id. 91. Similarly, pursuant to the Shareholders Agreement, PHRGL did not assume Amanat and PVP's liabilities under the SURF Agreement. Rather, Schedule 7 of the Shareholders Agreement contemplated that certain "incentive arrangements w[ould] be incorporated into an asset management agreement between [PHRGL], PHRL and SURF" at a later date, and did not provide for payment of a sum certain by PHRGL. Id. 97. Such an asset management agreement was never entered into, and the board members of PHRGL voted to eliminate the Schedule 7 incentive arrangements. Id D. Amanat's Inability To Fulfill His Financial Obligations During the time period leading up to the Aman Resorts Acquisition, Amanat repeatedly declared that he would personally fund $50 to $150 million to consummate the deal. Id. 62. However, Amanat was misrepresenting his ability and intent to inject capital. Id. 43, 63. Specifically, Amanat informed Stuppler and Oka that he would be moving money into a Standard Chartered Bank account in order to close on the agreement with DLF, but did not disclose that those funds were in fact Doronin's, and that Amanat had no funds available to close the deal. Id. 73; Compl. 66. In fact, Amanat is embroiled in litigation both in the New York 8

16 Supreme Court and in the United Kingdom related to the Aman Resorts Acquisition, and such litigations include allegations that Amanat prepared fraudulent and forged documents concerning his financial status, and that he has a history of improperly taking millions of dollars from business partners. See McDougall Aff. Exhibits 3, 4. To date, neither Amanat nor PVP has paid any funds to Sustainable in connection with the SURF Agreement despite the fact that such sums were due at the time the transaction closed, on February 7, FAC 124. ARGUMENT Pursuant to CPLR 3211(a)(7) "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that... the pleading fails to state a cause of action...." On such a motion, despite the general deference accorded to a claim's allegations, "conclusory allegations -- claims consisting of bare legal conclusions with no factual specificity -- are insufficient...." Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009). As set forth more specifically herein, Plaintiffs have failed to support necessary elements of the claims they allege and repeatedly rely on conclusory assertions. As such, the causes of action against Doronin should be dismissed. Further, factual claims that are inherently incredible, and allegations that are contradicted by documentary evidence, are not entitled to any presumption of truth. See, e.g., Caniglia v. Chicago Tribune-NY News Syndicate, Inc., 204 A.D.2d 233, 234 (1st Dep't 1994). In particular, while Plaintiffs filed the First Amended Complaint in response to Doronin's previously-filed motion to dismiss, the prior statements and averments that Plaintiffs' made in the original Complaint constitute documentary evidence pursuant to CPLR 3211(a)(1). See Morgenthow, 305 A.D.2d at 7. As such, the numerous allegations made in the original Complaint which (i) were conspicuously omitted from the First Amended Complaint, and/or 9

17 (ii) directly contradict allegations in the First Amended Complaint, and which conclusively establish defenses to the claims now asserted by Plaintiffs, require dismissal of Plaintiffs causes of action. See id. ("[P]rior statements or averments of parties of their agents in the court of litigation that refute an essential element of a plaintiff's present claim may constitute documentary evidence within the meaning of CPLR 3211(a)(1)," and thus serve as a basis for dismissal.); see also Warshaw at 537 (same). I. PLAINTIFFS FAIL TO STATE A CLAIM FOR TORTIOUS INTERFERENCE WITH THE SURF AGREEMENT Plaintiffs' second cause of action purports to state a claim against certain defendants, including Doronin, for tortiously interfering with Sustainable's rights under the SURF Agreement, i.e., the agreement pursuant to which Amanat and PVP were obligated to pay Sustainable for its services and to enter into future contracts with Sustainable. See FAC Plaintiffs do not -- and cannot -- plead the necessary elements of this cause of action. It is black letter law that a claim for tortious interference with contract will only lie where the defendant was the but for cause of the breach of the agreement in question.5 See Burrowes v. Combs, 25 A.D.3d 370, 373 (1st Dep't 2006); see also Ferrandino & Son, Inc. v. Wheaton Builders, Inc., LLC, 82 A.D.3d 1035, 1036 (2d Dep't 2011) (affirming dismissal of tortious interference with contract claim where plaintiff failed to allege that, "but for" third party's actions, contracting party would have continued the subcontract). According to the First Amended Complaint, the SURF Agreement is an enforceable contract against Amanat and PVP, and only Amanat and PVP were obligated to Plaintiffs under the SURF Agreement. See, e.g., FAC 48-55, 129. However, Plaintiffs completely and utterly fail to plead that Doronin was 5 For the purposes of the instant motion, it is presumed that the SURF Agreement constitutes a valid agreement that was breached. Doronin reserves all arguments regarding the SURF Agreement, including that the SURF Agreement is unenforceable or that there has been no breach thereof. 10

18 the but for cause of Amanat's and PVP's failure to comply with their obligations under the SURF Agreement. While, in response to arguments raised in Doronin's motion to dismiss the original Complaint, the First Amended Complaint includes a laundry list of actions by Doronin that purportedly "procured PVP's and Amanat's breach of the SURF Agreement," FAC 137, at best these allegations set forth that Doronin prevented other entities from assuming PVP's and Amanat's payment obligations under the SURF Agreement, not that Doronin prevented PVP's and Amanat's performance of their existing obligations to Sustainable. Indeed, as acknowledged by Plaintiffs, throughout the relevant time period, Sustainable explicitly continued to reserve its rights under the SURF Agreement until definitive documentation was executed obligating another party to assume PVP's and Amanat's obligations thereunder. See FAC 91. Indeed, irrespective of Doronin's actions, Amanat and PVP were free to pay Sustainable in accordance with the terms of the SURF Agreement. Accordingly, the First Amended Complaint does not -- and cannot -- allege that Doronin did anything to interfere with Amanat's and PVP's payments to Sustainable. Likewise, the First Amended Complaint does not allege that, but for Doronin's conduct, Amanat and PVP would have paid Plaintiffs the amounts allegedly due under the SURF Agreement. Nor could Plaintiffs make such an allegation as Plaintiffs -- like Doronin -- have learned that Amanat is a serial swindler who has repeatedly failed to live up to his obligations. See id. Tif 62, 63, 73; Compl. Irli 55, 56, 66, 70. In fact, Amanat is currently involved in several other lawsuits (including one filed by Doronin) arising out of Amanat's fraudulent conduct in connection with the Aman Resorts Acquisition.6 6 Amanat is a defendant in the case captioned Doronin v. Amanat, Index. No /2014, filed in the Supreme Court of the State of New York on July 16, See McDougall Aff. Exhibit 3. Claims have also been made against Amanat in a consolidated action currently pending in the High Court of Justice, Chancery Division, London. See id. Exhibit 4. This Court may take judicial notice of these actions. See 11

19 Moreover, Doronin could not have been the but for cause of PVP's and Amanat's failure to enter into future contracts with Sustainable for Asset Management Services or LP Services in accordance with the SURF Agreement. Again, these obligations were those of PVP and Amanat. See, e.g., FAC 53 (stating that "Peak [i.e., Amanat and PVP] shall appoint Sustainable... to provide Asset Management Services"), 55 (stating that that "Peak [i.e., Amanat and PVP] shall appoint Sustainable... to provide the LP Services"). However, because Amanat and PVP did not actually acquire the Aman Resorts, they did not have the ability to enter into the future contracts contemplated by the SURF Agreement. Because Amanat and PVP promised Sustainable something they could not deliver, Doronin's alleged interference was not the but for cause of Amanat's and PVP's failure to perform. Given the foregoing, the First Amended Complaint does not -- and could not -- support the inference that Doronin's conduct was the "but for" cause of Amanat's and PVP's breaches of the SURF Agreement. This insurmountable pleading failure mandates dismissal of the tortious interference with contract claim against Doronin. See, e.g., Beecher v. Feldstein, 8 A.D.3d 597, 598 (2d Dep't 2004) (dismissing claim where "the defendant's actions did not procure and were merely incidental to the" breach); Greenky v. Toussaint, No /07, 2009 N.Y. Slip. Op (U), at *8 (Sup. Ct. N.Y. Cty. Jan. 9, 2009) (dismissing tortious interference claim where there was an alternate explanation for the breach). RGH Liquidating Trust v. Deloitte & Touche LLP, 71 A.D.3d 198, 207 (1st Dep't 2009), rev'd on other grounds, 17 N.Y.3d 397 (2011) ("[I]t is well established that a court may take judicial notice of undisputed court records and files.") (citation omitted); Matter of Allen v. Strough, 301 A.D.2d 11, 18 (2d Dep't 2002) ("In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action.") (citations omitted). 12

20 IL PLAINTIFFS FAIL TO STATE A CLAIM FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE Plaintiffs' third cause of action purports to state a claim for tortious interference with prospective contractual relations and/or economic advantage against certain defendants, including Doronin, because (i) defendants' allegedly interfered with the "ongoing business relationship" called for by the "terms of the SURF Agreement," and (ii) "[i]n addition or the alternative," defendants failed to fulfill "their own promises and/or representations" that SURF would be the asset manager for Aman Resorts and would receive certain financial remuneration. FAC In Despite its amendment, this cause of action -- which requires conduct that is more culpable than a tortious interference with contract claim, see Jurlique, Inc. v. Austral Biolab Pty., Ltd., 187 A.D.2d 637, 638 (2d Dep't 1992) -- remains insufficiently pled and must be dismissed. A. Plaintiffs Fail To Allege A Claim Based On Interference With The Ongoing Business Relationship Contemplated By The SURF Agreement As with a tortious interference with contract claim, to sustain a tortious interference with prospective economic advantage claim, a plaintiff must aver that he "would have consummated a contract with another person but for the interference of the defendant." Sch. of Visual Arts v. Kuprewicz, 3 Misc. 3d 278, 288 (Sup. Ct. N.Y. Cty. 2003) (emphasis in original). This is a "stringent test" and the claimant must include factual allegations that support the conclusion that a contract would have been executed. See De Santis v. City of Troy, 83 Misc. 2d 195, (Sup. Ct. Rensselaer Cty. 1975) (citing Williams & Co. v. Collins Tuttle & Co., 176 N.Y.S.2d 99, 104 (1st Dep't 1958) and Union Car. Adver. Co., Inc. v. Collier, 263 N.Y. 386, (1934)); Sch. of Visual Arts, 3 Misc. 3d at 288 (dismissing claim where there was no allegation that "any contract would have been entered into in the absence of [defendant's] interference"). The First Amended Complaint does not meet this standard. 13

21 Regurgitating the allegations that form the basis of the tortious interference with contract claim, the First Amended Complaint also purports to state a claim for tortious interference with prospective economic advantage based on the future business relationship contemplated by the SURF Agreement, i.e., Sustainable's potential role as the Asset Manager of the Aman Resorts and the provider of "LP Services." FAC However, as set forth above in connection with the tortious interference with contract claim, see supra at 10-12, Plaintiffs do not -- and cannot -- allege that, but for Doronin's interference, they would have been able to execute agreements with Amanat and PVP for the future services contemplated in the SURF Agreement. Accordingly, the First Amended Complaint fails to allege the requisite element of but for causation. B. Plaintiffs Cannot Allege Tortious Interference With Defendants' Own Promises And Representations In an effort to save their facially deficient tortious interference with economic advantage claim, Plaintiffs illogically allege that defendants tortiously interfered with their own representations and/or promises. See FAC TT 144, 146, 147, 150. It is axiomatic that tortious interference can only be alleged against a third party, and that a defendant cannot interfere with its own economic relations. See Steinberg v. Schnapp, 73 A.D.3d 171, 175 (1st Dep't 2010) (defendant "could not be liable in tort for interfering with his own economic relationship"); see also 5 Calinody-Wait 2d New York Practice 29:247 ("[T]he defendant cannot be liable in tort for interfering with his own economic relationship, advantageous or otherwise...."). Thus, Plaintiffs cannot state a claim based on these facts. To the extent that the tortious interference with prospective contractual relations claim concerns the future services contemplated by the SURF Agreement, it is duplicative of the tortious interference with contract claim, and should be dismissed on this basis. See Rivas v. Raymond Schwartzberg & Assocs., PLLC, 52 A.D.3d 401, 401 (1st Dep't 2008) (where two claims "aris[e] from the same facts and allege] similar damages," they are duplicative and one should be dismissed); InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152 (1st Dep't 2003) (same). 14

22 C. Plaintiffs Do Not Sufficiently Allege Wrongful Conduct By Doronin Finally, Plaintiffs' claim for tortious interference with business relations fails because Plaintiffs do not adequately allege wrongful conduct by Doronin that was either (i) taken with the "sole purpose of inflicting intentional harm on plaintiffs" or (ii) which "amount[s] to a crime or an independent tort." Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190 (2004). Allegations of wrongful conduct cannot be wholly conclusory, and must be supported by sufficient facts. See id.; Lockheed Martin Corp. v. Aatlas Commerce Inc., 283 A.D.2d 801, 804 (3d Dep't 2001) (dismissing tortious inference claim where wrongful conduct was alleged in a "conclusory fashion"). Here, Plaintiffs do not come close to satisfying this pleading requirement. i. Doronin's Sole Motivation Was Not Malice While the First Amended Complaint makes the conclusory assertion that "Defendants intentionally, maliciously and/or without reasonable justification or excuse interfered with SURF's prospective contractual relations," FAC 147, the First Amended Complaint fails to allege -- as is required -- that Doronin's sole motivation was malice. See M.J. & K Co. v. Matthew Bender & Co., 220 A.D.2d 488, 490 (2d Dep't 1995) (plaintiff alleging tortious interference must plead that the motive for the alleged interference was "solely malicious"). Indeed, the allegations of the First Amended Complaint undermine any possible inference that Doronin's actions were taken "for the sole purpose of inflicting intentional harm" upon Plaintiffs, see Carve! Corp., 3 N.Y.3d at 190, but rather support the inference that Doronin's actions were taken to facilitate and effectuate his own rights as set forth in the Letter Agreement and the Shareholders Agreement, FAC 1 79, 93. Moreover, the original Complaint -- which avers that the purpose of defendants' purported scheme was to "dilute, extinguish, and carve-up Plaintiffs' rights for themselves," Compl conclusively negates any possible contention that Doronin was solely motivated by malice. See Morgenthow, 305 A.D.2d at 78 (dismissing 15

23 claim where prior allegations in complaint flatly contradicted current claims); see also Colliton v. Cravath, Swaine & Moore LLP, No. 08 Civ. 0400, 2008 WL , at *6 (S.D.N.Y. Sept. 24, 2008) ("Where a plaintiff blatantly changes his statement of the facts in order to respond to the defendant's motion to dismiss and directly contradicts the facts set forth in his original Complaint, a court is authorized to accept the facts described in the original Complaint as true."). Accordingly, Plaintiffs' claim for tortious interference with prospective economic advantage should be dismissed. See, e.g., Thome v. Alexander & Louis Calder Found., 70 A.D.3d 88, 108 (1st Dep't 2009) (finding claim for tortious interference insufficiently pled where "by plaintiff's own theory of the case, defendants acted with the intent of benefitting themselves"); Phillips v. Carter, 58 A.D.3d 528, 528 (1st Dep't 2009) (dismissing claim where plaintiff "fail[ed] to establish that defendant acted solely to harm plaintiff by unlawful means beyond mere selfinterest or other economic considerations"). ii. Doronin Did Not Commit Independently Tortious Or Criminal Behavior Plaintiffs have similarly failed to allege that the acts committed by Doronin which purportedly interfered with Plaintiffs' future business relationships were independently tortious or criminal. See Carvel Corp., 3 N.Y.3d at 190 (explaining that conduct that is not independently criminal or tortious is "insufficiently 'culpable' to create liability for interference with prospective contracts or other nonbinding economic relations"). Specifically, for this claim to survive, Plaintiffs must allege "fraudulent representations, threats, or a violation of a duty of fidelity owed to the plaintiff' which would constitute wrongful conduct by Doronin and which interfered with Plaintiffs' business expectancy. See Jurlique, 187 A.D.2d at 639. Plaintiffs have not met their burden. Put simply, Plaintiffs' allegations that Doronin (1) entered into the Letter Agreement with Amanat, (ii) took certain actions as a board member of PHRGL, and (iii) sought to enter into a settlement with Plaintiffs with respect to their claims 16

24 under the SURF Agreement, see FAC 147, do not amount to independently tortious or illegal behavior. Because Plaintiffs have failed to sufficiently plead that Doronin engaged in wrongful conduct, they have failed to state a claim for tortious interference with prospective contractual relations and/or economic advantage. III. PLAINTIFFS FAIL TO STATE A CLAIM FOR FRAUD While the original Complaint only alleged a fraud claim against Amanat, PVP, and Manaman Ventures Pte. Ltd., Compl. TT , in the First Amended Complaint, Plaintiffs purport to state a claim for fraud against additional defendants, including Doronin, FAC Tit "To make a prima facie claim of fraud, the complaint must allege misrepresentation or concealment of a material fact, falsity, scienter on the part of the wrongdoer, justifiable reliance and resulting injury." Dembeck v. 220 Cent. Park S., LLC, 33 A.D.3d 491, 492 (1st Dep't 2006). Further, this claim is subject to the heightened pleading standard of CPLR 3016(b), which requires that "the circumstances constituting the wrong shall be stated in detail." CPLR 3016(b). Because Plaintiffs fail to plead the necessary elements of this cause of action with the requisite particularity, their fraud claim must be dismissed. See Sirohi v. Lee, 222 A.D.2d 222, 222 (1st Dep't 1995) (dismissing fraud claim where plaintiff "failed to state the circumstances constituting the wrong and to allege each of the elements of fraud, i.e., misrepresentation of a material fact, scienter, justifiable reliance, and injury, with the particularity mandated by CPLR 3016(b)"). A. Misrepresentations By Amanat Are Insufficient To State A Claim Against Doronin Where, as here, a fraud claim is pled against multiple defendants, allegations -- including the specific misrepresentations forming the basis of the cause of action -- may not be made 17

25 collectively as to all defendants, but must be stated, for each defendant, in detail. See, e.g., CIFG Assur. N. Am., Inc. v. Bank of Am., NA., 41 Misc.3d 1203(A) at *3 (Sup. Ct. N.Y. Cty. 2013) ("A [fraud] claim involving multiple defendants must make specific and separate allegations for each defendant"); Mazzone v. Mazzone, 269 A.D.2d 574, 574 (2d Dep't 2000) ("To plead a valid cause of action sounding in fraud, the complaint must set forth all the elements of fraud including the making of material representations by the defendant.") (emphasis added); Weksler v. Kane Kessler, P.C., 63 A.D.3d 529, 530 (1st Dep't 2009) (dismissing fraud claim for failing to plead misrepresentations with specificity); Brualdi v. IBERIA, 79 A.D.3d 959, (2d Dep't 2010) (dismissing fraud claim where it "did not contain factual allegations showing that the defendant made a representation concerning a material fact"). Here, the majority of the misrepresentations on which Plaintiffs' fraud claim is based were not made by Doronin but by Amanat. See, e.g., FAC 154 ("Amanat introduced Stuppler to Doronin via , wherein Amanat stated...."), 155 ("Amanat told Stuppler...."); ("Amanat expressly assured Stuppler...."). These alleged misrepresentations do not state a claim against Doronin. B. The Shareholders' Agreement Cannot Support A Claim For Fraud By Plaintiffs Plaintiffs also contend that certain provisions in the Shareholders Agreement signed by Amanat and Doronin on behalf of PHRL and TIL, respectively, constitute actionable misrepresentations. Plaintiffs are wrong. Because the representations in the Shareholder Agreement were not made to Plaintiffs, they are insufficient to support a claim for fraud by Plaintiffs. See Briarpatch Ltd., L.P. v. Frankfurt, Garbus, Klein & Selz, P.C., 13 A.D.3d 296, 297 (1st Dep't 2004) (fraud claims properly dismissed where "[t]he only alleged misrepresentation concerned a letter from defendant... to a third party"); Escoett & Co. v. 18

26 Alexander & Alexander, Inc., 31 A.D.2d 791, 791 (1st Dep't 1969) (dismissing fraud counterclaim because "representations of which the defendant complain[ed] were made to third parties and not to it"); Cont'l Realty, LLC v. Kennelly Dev. Co., LLC, 19 Misc. 3d 1140(A), at *6 (Sup. Ct. Kings Cty. 2008) (dismissing fraud claim brought by real estate broker based on representations "made by the seller and purchaser 'to each other'... [as n]o representation was made to plaintiff'). Additionally, and in any event, the Shareholders Agreement explicitly provides that "a person who is not a party to this agreement shall not have any rights... to enforce any term of this agreement." Accordingly, Plaintiffs could not have possibly justifiably relied on the Shareholders Agreement in performing post-closing services because, to the extent that they knew about the Shareholders Agreement, they also knew that they unequivocally had no enforcement rights thereunder. See 1411 Broadway Rest., Inc. v. Keystone Assocs., 237 A.D.2d 190, 190 (1st Dep't 1997) (contract undermined any claim of reliance on the alleged misrepresentation where it indicated that it was not binding). C. Statements In Unexecuted Agreements Cannot Constitute Misrepresentations On Which Plaintiffs Justifiably Relied In fact, the only purported misrepresentations that Plaintiffs cite in support of their fraud claim which (i) are attributable to Doronin (or his representative), and (ii) were made to Plaintiffs, are based on "a draft of a letter agreement concerning the contemplated acquisition" and a draft of the Fee Letter which Plaintiffs admit was never fully executed. FAC Tii 91, 154, 157, 158. However, statements in draft agreements do not constitute false representations sufficient to support a fraud claim. To hold otherwise would be tantamount to sanctioning 19

27 liability for fraud anytime that negotiations to enter into a contractual relationship proved unsuccessful.8 Additionally, and in any event, the fact that these agreements were never executed undermines any assertion that Plaintiffs' reliance was justifiable. In fact, as Plaintiffs have explicitly alleged, at the time that the parties were negotiating these agreements, Stuppler informed Doronin and Amanat that Plaintiffs were not relying on the unexecuted agreements, but that Sustainable was reserving its rights under the SURF Agreement. See FAC 91 ("Drafts [of the Fee Letter] were signed by Doronin and Amanat, but never was the same version signed by all of the parties. Stuppler continued to remind [Amanat and Doronin] that [Sustainable] was reserving its rights until there were definitive documents signed."). Accordingly, Plaintiffs' conclusory assertions of justifiable reliance should be rejected by this Court. See Harris v. Camilleri, 77 A.D.2d 861, (2d Dep't 1980) (plaintiff's assertion that he justifiably relied on defendant's representations was negated by other allegations in the complaint and was thus legally deficient). D. The Letter Agreement Further Undermines Any Contention Of Justifiable Reliance Finally, Plaintiffs' informed decision to continue to provide services after learning, on January 6, 2014, that Doronin and Amanat had executed the Letter Agreement -- which contradicted Amanat's previous agreement with Plaintiffs and cut Plaintiffs out of the deal, see Compl entirely undermines any argument that Plaintiffs reasonably relied on any subsequent oral promises that Sustainable would be involved with Aman Resorts in any capacity 8 Even if the agreements upon which Plaintiffs purported relied had been executed -- which they were not -- an intention not to perform a contract does not support a claim for fraud. See, e.g., Fromowitz v. W. Park Assocs., Inc., 106 A.D.3d 950, 951 (2d Dep't 2013) (dismissing fraud claim based on "allegations that defendant entered into a contract while lacking the intent to perform"). 20

28 or receive compensation for their services, see FAC Put simply, Plaintiffs cannot claim reasonable reliance on oral representations which were directly contrary to terms of a written agreement of which they were fully aware. See Bango v. Naughton, 184 A.D.2d 961, 963 (3d Dep't 1992) (conflict between a writing and an oral representation negates any claim of reasonable reliance on the oral representation); Oko v. Walsh, 28 A.D.3d 529, 529 (2d Dep't 2006) (alleged oral representations contrary to written agreement cannot be reasonably relied upon). IV. PLAINTIFFS' CIVIL CONSPIRACY CLAIM FAILS ALONG WITH ITS TORT AND FRAUD CLAIMS Plaintiffs' seventh cause of action purports to state a claim for civil conspiracy against all defendants, including Doronin, on the basis that they "agreed to carry out a plan to interfere with the SURF Agreement and SURF's prospective contractual relations" and "agreed to carry out a plan to defraud Plaintiffs...." FAC However, an independent cause of action for civil conspiracy is not recognized under New York law. See Jebran v. LaSalle Bus. Credit, LLC, 33 A.D.3d 424, 425 (1st Dep't 2006); Waggoner v. Caruso, 68 A.D.3d 1, 6 (1st Dep't 2009). Rather, for a claim for civil conspiracy to lie, a complaint must plead "a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement." Assocs., LP v. City of N.Y., 91 A.D.3d 519, 520 (1st Dep't 2012). For the reasons stated above, Plaintiffs' claims for tortious interference and fraud fail and cannot serve as the predicate torts for the civil conspiracy claim because, as set forth above, the First Amended Complaint does not state cognizable cause of actions with respect to these claims. See Thome, 70 A.D.3d at 110 ("Since none of plaintiff's tort claims are viable... those claims 9 Plaintiffs cannot allege that they relied on Annex A to the Letter Agreement, as it was omitted from the version of the Letter Agreement that was sent to them. Compl. 68 ("[W]hen Amanat finally forwarded the Letter Agreement to Stuppler on January 6, 2014, he omitted Annex A...."). 21

29 cannot form the basis for a civil conspiracy cause of action."); Algomod Techs. Corp. v. Price, 65 A.D.3d 974, 975 (1st Dep't 2009) ("In the absence of any viable causes of action, the conspiracy claims cannot stand as an independent tort."). Further, Plaintiffs have not sufficiently alleged any agreement amongst the defendants. While they make the conclusory assertion that "Defendants agreed to carry out a plan to defraud Plaintiffs[,]" FAC 181, this is plainly not enough. "[M]ore than a conclusory allegation of conspiracy or common purpose is required to state a cause of action...." Schwartz v. Soc'y of N.Y. Hosp., 199 A.D.2d 129, 130 (1st Dep't 1993); see also Agostini v. Sobol, 304 A.D.2d 395, 395 (1st Dep't 2003) (conspiracy claim properly dismissed where "plaintiff failed to establish, other than by conclusory allegations, any common scheme or plan") (citation and quotation marks omitted); Bannister v. Agard, 125 A.D.3d 797, 799 (2d Dep't 2015) (dismissing claim where "it lacked] the necessary factual allegations that the [defendants] were part of a common scheme or plan to defraud the plaintiff ').1 Moreover, as Plaintiffs averred in their original Complaint, defendants have undermined each other, defrauded each other, and gone behind each others' backs, Compl. 70; almost immediately following the closing of the Aman Resorts Acquisition, defendants were engaged in "visceral fighting," id. 87; and, the defendants are divided into different factions, each blaming the other, id. 89, 94. Because such allegations conclusively negate the First Amended to A claim for conspiracy to defraud is subject to the heightened pleading standard of CPLR 3016(b). To satisfy this requirement, the Plaintiffs "must allege the specific times, facts, and circumstances of the alleged conspiracy." DDR Constr. Servs., Inc. v. Siemens Indus., Inc., 770 F. Supp. 2d 627, (S.D.N.Y. 2011) (dismissal appropriate where the complaint did not "state any facts indicating the what, when, where, and how of the conspiracy" but made only conclusory allegations); Gallant v. Kanterman, 198 A.D.2d 76, 80 (1st Dep't 1993) (dismissing conspiracy to defraud claim founded on "general and conclusory allegations"). Because, as set forth above, Plaintiffs fail to meet the lower pleading standard, they also necessarily fail to meet the heightened pleading standard. 22