MEMORANDUM DECISION AND ORDER I. Introduction Plaintiffs Bruce A. Van Buskirk and Lori A. Van Buskirk commenced this action against The United Group of Companies, Inc. (UGOC); DCG/UGOC Funds Management II, LLC; Michael J. Uccellini and Jessica F. Steffensen as Executor and Execturix, of the Estate of Walter F. Uccellini; Michael J. Uccellini (collectively, “United Defendants”); MCM Securities, LLC; and Millennium Credit Markets, LLC (collectively, “MCM Defendants”),1 asserting New York State law claims of common law fraud, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, negligent misrepresentation, and unjust enrichment against United Defendants, as well as aiding and abetting against MCM Defendants. (See generally 2d Am. Compl., Dkt. No. 11.) Pending is plaintiffs’ motion for leave to file a third amended complaint. (Dkt. No. 67.) In response, defendants assert that plaintiffs’ motion should be denied because the proposed amendment would be futile, and, in the alternative, request that should plaintiffs’ motion be granted, it be conditioned on the payment of reasonable attorneys’ fees. (Dkt. No. 72.) In arguing futility, defendants’ incorporate the arguments made in their motion to dismiss, (Dkt. No. 16), “in their entirety,” (Dkt. No. 72 at 14). Thus, the court construes Dkt. No. 72 as a renewal of the motion to dismiss, (Dkt. No. 16), which has been fully briefed by the parties, (Dkt. Nos. 16, 28, 34). For the reasons that follow, plaintiffs’ motion is granted, conditioned upon the payment to defendants of reasonable attorneys’ fees in the amount of $7,500.00, and plaintiffs’ claim of unjust enrichment is dismissed. II. Background A. Facts2 For a full recitation of the underlying facts, the parties are referred to the court’s April 9, 2018 order in Grasso v. United Group of Companies, Inc., No. 1:16-cv-965, 2018 WL 1737619 (N.D.N.Y. Apr. 9, 2018), which is a related action that involves a nearly identical complaint and nearly identical motion to dismiss briefing. Summarily, plaintiffs were investors in an income fund created, managed, and/or operated by defendants (hereinafter “the Income Fund”). (2d Am. Compl.
1-8.) In connection with soliciting plaintiffs’ investments in the Income Fund, plaintiffs allege that United Defendants made several factual misrepresentations, including that the Income Fund would invest in secure debt instruments backed by real estate assets that could quickly be converted to cash and would generate a high annual rate of return for investors when, in reality, United Defendants knew the student housing projects faced problems — including low occupancy — which made these returns highly unlikely and risked non-payment of the fund’s notes receivable. (Id. 63.) Plaintiffs further allege that United Defendants and Edgar Page — an investment advisor who had a substantial stake in the success of the Income Fund and who advised plaintiffs to invest in it even though he knew the projects were struggling — failed to disclose several facts that were material to plaintiffs’ investments. (Id.
