MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff Vanderbilt Minerals, LLC (“Plaintiff”) commenced this action against Sub- Technical, Inc. (“Defendant”) in state court on December 19, 2017, alleging breach of contract, negligence, breach of warranty, and negligent misrepresentation. See Dkt. No. 2. Plaintiff seeks monetary compensation for damages allegedly caused by or related to work Defendant performed. See id. at
26-31. Defendant subsequently removed this action to this Court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. §1332. See Dkt. No. 1. Currently before the Court is Defendant’s motion for summary judgment. See Dkt. No. 34. II. BACKGROUND In 2014, Plaintiff contacted Defendant to address a water inflow problem in Plaintiff’s mine, located in Diana, New York. See Dkt. No. 34-1 at 7. Defendant’s principal, Eric Smith (“Smith”), made a site visit in December of 2014. See id. at 9. During the visit, Smith was shown the affected area and Smith noted signs of water infiltration, i.e., clay and rock about knee height above the floor. See id. at 11. During the site visit, Smith viewed all areas of the mine that he believed to be necessary to determine the proper means of addressing Plaintiff’s water problem. See Dkt. No. 34-9 at 30-31. Following the inspection, Defendant provided Plaintiff with an estimate of costs to stem the water inflow. See Dkt. No. 35-2. Subsequently, Plaintiff issued a purchase order based on the estimate. See Dkt. No. 34-1 at 15; Dkt. No. 34-10 at 55; Dkt. No. 35-3. Defendant was hired to provide drilling and grouting services in the mine to stem the flow of water. See Dkt. No. 34-1 at 13. The work was completed in April 2015 without issue and to Plaintiff’s satisfaction. See Dkt. No. 34-1 at 12; Dkt. No. 34-10 at 54. Prior to August 2016, Plaintiff contacted Defendant to perform additional work concerning water inflow in Plaintiff’s mine. See Dkt. No. 34-1 at 17; Dkt. No. 34-9 at 54-55. Smith made another site visit and observed that the water intrusion level was higher than at the time of the original visit. See Dkt. No. 34-1 at 17. During the site visit, Smith gathered information from Plaintiff about seepage in the mine and inspected the areas affected by the water inflow. See Dkt. No. 34-9 at 55-58. Following the site visit, Defendant issued an estimate. See Dkt. No. 34-9 at 58; Dkt. No 35-7. Plaintiff then created a purchase order for the corresponding amount. See Dkt. No. 34-1 at 19; Dkt. No. 35-9. Work began in August 2016. See Dkt. No. 34-1 at 25. However, prior to completion, Plaintiff terminated the project. See id. at 34. Plaintiff claims that the project was cancelled because after more than 40,000 pounds of polyurethane was injected in an attempt to stem the water inflow, the inflow of water worsened substantially. See Dkt. No. 35 at 33. Defendant was never paid for the work performed in 2016. See Dkt. No. 34-1 at 35. On December 19, 2017, Plaintiff commenced this action in state court, alleging four causes of action arising from the events described above: breach of contract, negligence, breach of warranty, and negligent misrepresentation. See Dkt. No. 2 at 7-9. Specifically, Plaintiff argues that it suffered damages as a result of Defendant’s failure to properly determine necessary processes, materials, and methods; failure to perform services in accordance with industry standards; and by providing non-conforming, defective materials not fit for the particular purpose identified. See id. at 7-9. Further, Plaintiff alleges that it reasonably relied upon false representations made by Defendant as to the scope and quality of its skill and expertise, as well as the advisability of the materials and methods used. See id. at 9-10. In its motion for summary judgment, Defendant argues that Plaintiff’s claim for negligent misrepresentation must be dismissed as the parties did not have a relationship that would create a duty and any of the statements allegedly relied upon by Plaintiff constitute inactionable “puffery.” See Dkt. No. 34-2 at 5-7. Further, Defendant urges the dismissal of Plaintiff’s breach of contract claim, arguing that there was no contract between the parties, or in the alternative, Plaintiff was in breach of the contract and failed to establish that Defendant did not perform its obligations. See id. at 7-10. Finally, Defendant argues that Plaintiff’s breach of warranty claim must be dismissed as there was no contract with which Defendant failed to conform and all materials used by Defendant were merchantable. See id. at 10-12. III. DISCUSSION A. Summary Judgment Standard A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)). In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant’s statement of material facts, the court must be satisfied that the citations to evidence in the record support the movant’s assertions. See Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”). B. Breach of Contract Defendant claims that it is entitled to summary judgment as to Plaintiff’s breach of contract claim. See Dkt. No. 34-2 at 7. Specifically, Defendant contests the existence of a contract and argues that, even if the Court finds that a contract existed, Defendant cannot be found liable because Plaintiff failed to perform and failed to establish that Defendant did not perform its obligations under the contract. See id. at 9. Under New York law, a party alleging a breach of contract claim must allege the following elements: (i) the existence of a contract; (ii) adequate performance of the contract by the plaintiff; (iii) breach by the other party; and (iv) damages suffered as a result of the breach. See Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996) (citation omitted); see also Wolff v. Rare Medium, Inc., 171 F. Supp. 2d 354, 357-58 (S.D.N.Y. 2001) (citation omitted). “In pleading these elements, a plaintiff must identify what provisions of the contract were breached as a result of the acts at issue.” Wolff, 171 F. Supp. 2d at 358 (citation omitted). 1. Existence of a Contract “In order to adequately allege the existence of an agreement, ‘a plaintiff must “plead the provisions of the contract upon which the claim is based.”‘” Howell v. American Airlines, Inc., No. 05-CV-3628, 2006 WL 3681144, *3 (E.D.N.Y. Dec. 11, 2006) (quoting Phoenix Four, Inc. v. Strategic Res. Corp., No. 05 Civ. 4837(HB), 2006 WL 399396, at *10 (S.D.N.Y. Feb. 21, 2006) (quoting Window Headquarters, Inc. v. MAI Basic Four, Inc., Nos. 91 Civ. 1816 (MBM), 92 Civ. 5283(MBM), 1993 WL 312899, at *3 (S.D.N.Y. Aug. 12, 1993) (quoting Griffin Bros., Inc. v. Yatto, 68 A.D.2d 1009, 1009, 415 N.Y.S.2d 114, 114 (3d Dep’t 1979)))). “A plaintiff need not attach a copy of the contract to the complaint or quote the contractual provisions verbatim.” Id. (citing Window Headquarters, 1993 WL 312899, at *3 (citing Mayes v. Local 106, Int’l Union of Operating Eng’rs, 739 F. Supp. 744, 748 (N.D.N.Y. 1990))). “However, the complaint must at least ‘set forth the terms of the agreement upon which liability is predicated…by express reference.’” Id. (quoting Phoenix Four, 2006 WL 399396, at *10; Chrysler Capital Corp. v. Hilltop Egg Farms, Inc., 129 A.D.2d 927, 928, 514 N.Y.S.2d 1002, 1003 (3d Dep’t 1987)). Here, Plaintiff “set forth the substance of [the contract's] essential terms.” Marquardt-Glenn Cor. v. Lumelite Corp. 11 F.R.D. 175, 177 (S.D.N.Y. 1951). Specifically, Plaintiff alleged: In 2016, Plaintiff and Defendant entered into an Agreement whereby Defendant agreed to eliminate the groundwater intrusion at the Mine by identifying, implementing and providing the materials and services Defendant determined necessary to perform the “Hydro Sealing” injection grouting process it determined were necessary in particular areas of the Mine. … By the Agreement, Defendant agreed to determine what materials were necessary to perform the “Hydro Sealing” injection grouting processes it determined necessary in particular areas in the Mine for the particular purpose of eliminating the groundwater intrusion. By the Agreement, Defendant agreed to determine what services and means and methods of installation of the recommended materials were necessary to perform [the] “Hydro Sealing” injection grouting processes at the mine for the particular purpose of eliminating the groundwater intrusion. By the Agreement, Defendant agreed to provide the materials it determined necessary to perform [the] “Hydro Sealing” injection grouting processes at the mine for the particular purpose of eliminating the groundwater intrusion. By the Agreement, Defendant agreed to provide the services and means and methods of installation of the materials it determined necessary to perform [the] “Hydro Sealing” injection grouting processes at the mine sufficient for the particular purpose of eliminating the groundwater intrusion. Dkt. No. 2 at
