The following e-filed documents, listed on NYSCEF as document numbers 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26 (Motion Seq. #001) were read on this motion seeking an order of dismissal. DECISION AND ORDER Upon the foregoing cited papers, the Decision and Order of this Motion is as follows: Defendants move to dismiss Plaintiff’s complaint in its entirety pursuant to CPLR 3211(a)(1) and (a)(7). Plaintiff opposes defendants’ applications and requests leave to amend the Verified Complaint. Defendants’ application to dismiss Plaintiff’s complaint based upon documentary evidence is granted. Defendants’ applications to dismiss Plaintiff’s complaint for failure to state a cause is granted as follows. Background In November 2017, Defendant Rydan Realty, Inc. (“Rydan”) contracted to sell its lot with a commercial building located at 110 East 138th Street, Bronx, New York to Plaintiff (“Contract”) (NYSCEF #12). Between March 2018 and February 2020, the parties entered into three written amendments providing for closing extensions, additional deposits and adjournment payments. Defendants annex the First Amendment (NYSCEF # 13), Second Amendment (NYSCEF # 14) and Third Amendment (NYSCEF # 15) to the Contract. On May 12, 2020, Plaintiff sent a formal notice of termination of the Contract to Rydan on the basis that the existence of the 1983 Appropriation of a section of the subject premises by the State of New York prevents Rydan from being able to deliver marketable title as described in the parties’ Contract. Plaintiff commenced the instant action asserting conversion, breach of express warranty, and unjust enrichment causes of action against defendant Rydan, and a cause of action for fraud against all the defendants. Documentary Evidence Defendants argue that Plaintiff’s breach of warranty claim fails as a matter of law based upon the terms of the Contract because (1) the 1983 Appropriation is a Permitted Exception; (2) the Contract expressly provides that the Schedules prevail over any inconsistencies with the warranties; and (3) Plaintiff waived any objection based on the 1983 Appropriation by failing to serve the notice of termination within the contractual due diligence deadline. Defendants assert that Plaintiff abandoned the Contract without any lawful excuse. Defendants insist that the Contract is documentary evidence which establishes that Plaintiff’s efforts to terminate the contract are in bad faith. Defendants note that the Contract was made subject to 13 Permitted Exceptions set forth in Schedule B, including the 1983 Appropriation which they suggest is “a sliver of the property sitting underwater in the river” (“1983 Appropriation”). Defendants argue that they have performed in accordance with the terms of the Contract and have always been able to provide marketable title subject to the Permitted Exceptions as set forth in Schedule B. Defendants suggest that the 1983 Appropriation was disclosed by the Permitted Exceptions in Schedule B in four ways: (1) Permitted Exception 13 which includes all “[c]ovenants, restrictions, easements, agreements of record as of the date hereof, provided same do not prohibit the present use of the structure or structures now on the Premises for the present purpose”; (2) Permitted Exception 10 which includes “a statement of fact that an accurate survey would disclose”; (3) Permitted Exception 12 which includes “Covenant recorded in Reel 1299 pg 2083″ which also discloses the 1983 Appropriation; and (4) the 1983 Map referenced in the 1995 Covenant which discloses the 1983 Appropriation. Defendants emphasize that Plaintiff acknowledges in its Verified Complaint that the 1983 Appropriation was “filed as Reel 520, Page 872 on or about October 20, 1983″ (NYSCEF # 1) and, therefore, it is a “matter of record” within Permitted Exception 13 under Schedule B. Defendants contend that the 1983 Appropriation constitutes a “statement of fact that an accurate survey would disclose” under Exception 10 suggesting that several surveys disclose the 1983 Appropriation, particularly Plaintiff’s November 2017 title report (NYSCEF # 16) incorporated into the Contract through the Second Amendment (NYSCEF # 14). Defendants insist that it was the express intent of the parties that Plaintiff would receive the property subject to the Permitted Exceptions disclosed in the Contract’s schedules. Defendants note that Section 1.02 “Sale of Premises and Acceptable Title” provides that they are required to perform “in accordance with the terms of this contract, subject only to: (a) the matters set forth in Schedule B”. Relying on Laba v. Carey, defendants argue that when Permitted Exceptions are ‘”specifically contemplated by the contract,’ the exceptions must be ‘read together’ with other clauses of the contract to determine the parties’ obligations” (29 NY2d 302 [1971]). Relying on Stenda Realty, LLC v. Kornman et al, Defendants emphasize that because the Contract contains Permitted Exceptions to title, their obligations are subject to those Permitted Exceptions (67 AD3d 996 [2d Dept 2009]). Defendants insist that courts routinely dismiss actions against sellers of real property seeking to terminate contracts based on conditions that are Permitted Exceptions. Defendants insist that Plaintiff does not state a claim that they cannot deliver title to the property as required under the Contract. Defendants argue that Plaintiff’s contentions that they made false warranties in Article 4 of the Contract is rendered moot because Section 18.08 of the Contract provides that “[i]f any schedule or rider to this contract are inconsistent with the provisions of this contract, the provisions of such schedule or rider shall prevail”. Defendants insist that Schedule B prevails over any inconsistent warranties in Section 4 of the Contract. Defendants assert that to the extent that any warranties are “false because of the 1983 Appropriation, the falsity is inconsistent with the Schedule disclosures which — by contract — ‘shall prevail’ over the warranties.” Relying on Monaghan as Tr. Of Monaghan Qualified Personal Residence Tr. v. Cole, defendants assert that courts commonly enforce contractual provisions where parties expressly agree that the rider to a contract overrides any inconsistent provisions in the contract (171 AD3d 558 [1st Dept 2019]). Relying on CPS Operating Co. LLC v. Pathmark Stores, Inc., defendants also assert that to credit Plaintiff’s construction that defendants’ failure to identify the 1983 Appropriation specifically in the warranties renders those warranties false would in essence ignore the fact that the 1983 Appropriation “was repeatedly disclosed” and that the parties “agreed the sale would go forward in spite of it” (76 AD3d 1 [1st Dept 2010]). Defendants further argue that they are entitled to retain the down-payment given Plaintiff’s failure to timely serve a notice of termination in accordance with the terms of the Contract. Defendants note that the Contract contained a due diligence period which required Plaintiff to conduct all due diligence by January 16, 2018, which was subsequently adjourned to February 16, 2018 in accordance with the First Amendment to the Contract. Defendants also note that under Article 17.05 of the Contract, Plaintiff had “the right (in its sole and absolute discretion) to terminate” the Contract “for any or no reason during the Due Diligence Period by giving written notice to Seller (the ‘Termination Notice’)”. Defendants assert that Plaintiff failed to serve a notice of termination before the due diligence period deadline despite having knowledge of the 1983 Appropriation since November 2017 when it received the title report which expressly identified the 1983 Appropriation. Defendants indicate that Plaintiff provided them with a copy of the November 2017 title report before the expiration of the due diligence period. Defendants also indicate that the Second Amendment to the Contract entered into on March 23, 2018 expressly confirms the delivery of the November 2017 title report to Plaintiff. Noting that Article 17.5 of the Contract provides that “[i]f Purchaser fails to give the Termination Notice prior to the expiration of the Due Diligence Period, Purchaser shall be deemed to have waived the right to cancel this contract as provided in this Article 17″, Defendants argue that Plaintiff waived its right to cancel the Contract based on due diligence when it failed to issue a notice of termination by the due diligence period deadline of February 16, 2018. Relying on El-Ad 250 W. LLC v. 30 Hubert St. LLC, defendants argue that Plaintiff cannot now elect to terminate “for a default which apparently it chose to disregard as a grounds for termination of the contract” after continuing to perform under the contract without giving the seller notice of an alleged objection (67 AD3d 520 [1st Dept 2009]). Relying on Akeryod v. Soho 311 Dev., Inc., Defendants argue that Plaintiff waived previously disclosed errors in a description of real property in light of the subsequent agreements from the original Contract (124 AD3d 532 [1st Dept 2015]). Defendants note that between the due diligence period deadline of February 2018 and February 2020, the parties entered into two additional amendments — the Second and Third Amendments — to the Contract providing for closing extensions as well as nine additional deposits and 22 monthly non-refundable adjournment payments totaling $2,055,000. Defendants assert that both the Second and the Third Amendment “ratifie[d] and confirm[ed]” the Contract “ for all purposes and in all respects”. Defendants emphasize that at no time during the February 2018 to February 2020 period did Plaintiff raise the 1983 Appropriation as grounds for termination. Defendants contend that Plaintiff concedes it did not terminate the Contract within the contractual due diligence period suggesting that Plaintiff elected not to terminate the Contract despite having notice of the 1983 Appropriation as of the November 2017 title report. Defendants insist that Plaintiff is acting in bad faith in attempting to terminate the Contract. Plaintiff opposes defendants’ application arguing that the defendants falsely claimed to be fee simple title owner of the subject property by entering into the Contract to sell a piece of property they did not wholly own. Plaintiff insists that none of the Permitted Exceptions 10, 12 and 13 clearly and unambiguously refer to the 1983 Appropriation. Plaintiff argues that the defendants are stretching the Permitted Exceptions because they are forced to acknowledge “the glaring omission of the 1983 State Appropriation from the Description of Premises”. Plaintiff contends that the defendants misrepresented the size and value of the subject property when they omitted the 1983 Appropriation from Schedule A, the “Description of the Premises”. Plaintiff states that the 1983 Appropriation “removed an approximate 25 feet by 100 feet piece from the property — a considerable amount of land.” Plaintiff insists that the 1983 Appropriation is not included under Permitted Exception 10, which provides, “Any state of facts that an accurate survey would disclose as of the date hereof, provided that such facts do not render title unmarketable “. Plaintiff asserts that there has been no survey presented that refers to the 1983 Appropriation. Plaintiff notes that there were no surveys annexed to the Contract that details the 1983 Appropriation. Plaintiff contends that the December 1, 2017 survey which was presented to all the parties as part of the transaction fails to identify the 1983 Appropriation. Plaintiff suggests that defendants did not point out the alleged deficiency in the December 1, 2017 survey. Plaintiff argues that the 1983 Appropriation renders title unmarketable because defendants transferred title to a portion of the land appropriated by the State. Plaintiff insists that even if the 1983 Appropriation was intended to be included under the Permitted Exceptions, it renders title to the subject property unmarketable because defendants do not possess fee simple title to the property as described in the Contract and detailed in Schedule A. Plaintiff states that the Second Amendment does not incorporate the title report dated November 28, 2017 into the Contract and only confirms that the defendants received a copy of it. Plaintiff emphasizes that contrary to defendants’ contentions, Permitted Exception 12, Reel 1299, pg. 2083 is a “Covenant of Purpose, Use and Ownership: Oak Point Link” which makes no reference to the subject property or the loss of ownership or appropriation by the State. Plaintiff argues that the 1983 Appropriation does not fall within Permitted Exception 13 because it is not a covenant, restriction, easement or agreement. Plaintiff contends that the Permitted Exceptions make express reference to specific documents, namely Reel 1604 pg 0466 and Reel 1299 pg 2083, neither of which refer to the subject property. Plaintiff insists that it is undisputed that the parties did not list the 1983 Appropriation, which is recorded as Reel 520 pg 872 and Reel 550 pg 1169, in the Permitted Exceptions. Plaintiff further argues that its obligation to conduct due diligence does not absolve defendants’ obligation under the Contract, namely to deliver the subject property as detailed in Schedule A of the Contract. Plaintiff alleges that defendants made false representations and warranties in Sections 4.01, 4.17, 4.18 and 4.24 wherein defendant Rydan expressly represented and warranted that it is the “sole fee simple owner” of the subject property and that it “has no notice of and has no knowledge of any actual or proposed taking.” Plaintiff relied on defendants’ representations and warranties and agreed to pay a $500,000 down-payment and $2,055,000 additional payments. Plaintiff asserts that it “later learned that Defendants’ [sic] fraudulently misrepresented their ability to convey title to the Property, as a significant portion of the property was not owned in fee simple by Defendants, but rather had been appropriated by the State of New York in October 1983. Specifically, Plaintiff learned that the State of New York used eminent domain to take property along the waterfront to construct the CSX rail system.” Plaintiff states that it exercised its right under Section 4.30 of the Contract which provides that Plaintiff has “the right to terminate this Contract and receive a full refund of the Down-payment with interest accrued thereon” if any of the representations and warranties made by the defendants are untrue. Plaintiff suggests that defendants willfully withheld the 1983 Appropriation which “reduces the size, development potential, and value of the Property.” In reply, defendants emphasize that Plaintiff fails (1) to address defendants’ arguments that Plaintiff waived the right to terminate when it failed to do so within the prescribed contractual time period; (2) to address defendants’ cited caselaw; and (3) to offer well-developed caselaw concerning “permitted exceptions” in real estate transactions in New York. Defendants argue that their motion to dismiss should be granted solely based upon Plaintiff’s failure to contest the argument that it failed to terminate within the due diligence period. Defendants assert that Plaintiff’s argument “leads to the absurd result that even though the parties excepted the 1983 Appropriation from the contract, Rydan was obligated to deliver title to it.” Defendants insist Plaintiff could not bring an action against them for failure to deliver title in accordance with the Contract because Rydan was only required to deliver title to the subject premises subject to the Permitted Exceptions, which includes the 1983 Appropriation. Defendants continue to insist that Permitted Exception 13 applies because as Plaintiff acknowledges, the 1983 Appropriation was filed at “Reel 520, Page 872 on or about October 20, 1983″ and, therefore, is “of record”. Defendants assert that a “purchaser should vigorously oppose a provision making title subject to unspecified covenants, restrictions, or easements “of record” or “[h]e is charged with knowledge of all the facts which the record will disclose in that regard” (3 Warren’s Weed New York Real Property Sec. 32.72). Defendants argue that contrary to Plaintiff’s contentions, page 14 of the title report is entitled “Survey Reading” referencing the remainder of the title report (NYSCEF # 16). Defendants further argue that Permitted Exception 10 does not require an actual survey but rather what a survey “would disclose”. Defendants contend that an accurate survey would disclose the 1983 Appropriation given that the title company expressly identified the 1983 Appropriation. Defendants contend that Plaintiff’s marketability arguments have been rejected in caselaw cited by defendants, and which Plaintiff ignores. Defendants assert that Plaintiff’s waiver of its termination rights, and its ratification of the Contract twice after the due diligence period reinforce the property’s marketability. Defendants contend that Plaintiff’s assertion that the 1995 Covenant does not reference any loss of ownership is incorrect. Defendants note that page-two explicitly states that “[t]he State has acquired fee simple parcels” including a property on “Map 8, Parcel 16″ which has a vesting date of October 20, 1983 (NYSCEF # 18). Defendants emphasize that the 1995 Covenant contains the 1983 Map which discloses the 1983 Appropriation. Defendants note that Plaintiff also disregards their arguments that the schedules prevail over any conflicts with the warranties in the Contract It is well established that “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction” {Leon v. Martinez, 84 NY2d 83 [1994] citing Morone v. Morone, 50 NY2d 481 [1980]; Rovello v. Orofino Realty Co., Inc., 40 NY2d 633 [1976]). The court must accept facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon, 84 NY2d 83). Moreover, “[a] motion pursuant to CPLR 321 l(a)(l) may be granted ‘only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law’” (see Furman v. Wells Fargo Home Mtge., Inc., 105 AD3d 807 [2d Dept 2013] citing Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]). Generally, a document relied upon by the moving party seeking dismissal pursuant to CPLR 3211(a)(1) will qualify as documentary evidence if it is unambiguous and of undisputed authenticity (Anderson v. Armentano, 139 AD3d 769 [2d Dept 2016]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence’ in the proper case” (Anderson, 139 AD3d 769). Initially, the Court finds that the parties’ Contract constitutes documentary evidence that falls squarely within the ambit of CPLR 3211(a)(1) as it is a document reflecting the parties’ undeniable out-of-court transaction for the sale of the subject property. The relevant provisions of the Contract at issue in this matter are unambiguous and, therefore, may conclusively establish a defense as a matter of law (Anderson, 139 AD3d 769; Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314). The parties agreed in Section 1.02 of the Contract that “[Defendant Rydan] shall convey and [Plaintiff] shall accept marketable fee simple title to the Premises in accordance with the terms of this contract, subject only to: (a) the matters set forth in Schedule B attached hereto (collectively, “Permitted Exceptions”)…” Defendant Rydan acknowledges that the representations and warranties in Sections 4.01, 4.17, 4.18 and 4.24 of the Contract are “false” insofar as they expressly represented and warrantied that Rydan is the “sole fee simple owner” of the subject property and that it “has no notice of and has no knowledge of any actual or proposed taking”. Defendants, however, provide uncontested allegations that Section 18.08 of the Contract expressly provides that “[i]f the provisions of any schedule or rider to this contract are inconsistent with the provisions of this contract, the provisions of such schedule or rider shall prevail.” Hence, the parties expressly agreed that the provisions of Schedule B would override any inconsistent provisions of the Contract (see for example Monaghan as Tr of Monaghan Qualified Personal Residence Trust v. Cole, 171 AD3d 558 [1st Dept 2019]). Accordingly, an important issue that must be determined is whether the 1983 Appropriation is a Permitted Exception as defined by Schedule B in light of the parties’ conflicting interpretations. It is well settled that “[t]he fundamental rule of contract interpretation is that agreements are construed in accordance with the parties’ intent, and ‘[t]he best evidence of what parties to a written agreement intend is what they say in their writing” (see Riverside South Planning Corp. v. CRP/Extell Rivrside, L.P., 60 AD3d 61 [1st Dept 2008]). The First Department noted in Riverside South Planning Corp. that “[a] contract is unambiguous if ‘on its face [it] is reasonably susceptible of only one meaning’…Conversely, ‘[a] contract is ambiguous if the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings’” (60 AD3d 61, 66). The Court notes that Schedule B of the Contract provides for 13 Permitted Exceptions, three of which are in dispute in this application. Permitted Exception 10 provides, “[a]ny state of facts that an accurate survey would disclose as of the date hereof, provided that such facts do not render title unmarketable.” Permitted Exception 12 provides, “Covenant recorded in Reel 1299 pg 2083″ which is otherwise referred to as the 1995 Covenant. Permitted Exception 13 provides for “Covenants, restrictions, easements, agreements of record as of the date hereof, provided that same do not prohibit the present use of the structure or structures now on the Premises for its present purposes.” After accepting the facts as alleged in the complaint as true, and according Plaintiff the benefit of every possible favorable inference, the Court nevertheless finds that the documentary evidence conclusively establishes that the 1983 Appropriation falls within Permitted Exception 12 of Schedule B of the Contract. The Court notes that the 1983 Appropriation is clearly referenced under Permitted Exception 12 “Covenant recorded in Reel 1299 pg 2083″ otherwise referred to as the 1995 Covenant. The 1995 Covenant was executed on behalf of the State of New York for the construction and improvement of the Full Freight Access Program at the Oak Point Link in Bronx, New York. Section 2 of the 1995 Covenant lists 22 parcels in which the State “acquired title in fee simple” in connection with the Oak Point Link Project, one of which is the 1983 Appropriation listed as Map 8, Parcel 16, and Vesting Date of October 20, 1983. The 1995 Covenant referred to in Schedule B as Permitted Exceptions 12 is documentary evidence that is unambiguous and of undisputed authenticity (Anderson, 139 AD3d 769). As noted above, the parties agreed that the provisions of Schedule B would override any inconsistent provisions of the Contract. In addition, the Court finds that Plaintiff’s failure to timely terminate the Contract in accordance with Section 17.05 based upon the existence of the 1983 Appropriation fatal to its breach of express warranty cause of action. Section 17.01 of the Contract provides that the “Purchaser shall have the right to conduct any and all due diligence for any reason…” within 60 days of the date Plaintiff received the fully-executed copy of the Contract. Section 17.05 provides, “Notwithstanding anything to the contrary contained in this Section 17, Purchaser shall have the right (in its sole and absolute discretion) to terminate this Contract for any or no reason during the Due Diligence Period by giving written notice to Seller (the ‘Termination Notice’)”. The parties entered into the Contract on November 17, 2017, and subsequently agreed to extend Plaintiff’s due diligence period to February 16, 2018 in the First Amendment to the Contract. Plaintiff did not serve its Termination Notice until May 12, 2020, more than two years after the expiration of the due diligence period. The Court finds on this record that Plaintiff was clearly aware of the 1983 Appropriation before the expiration of its due diligence period. Plaintiff received the title report disclosing the 1983 Appropriation on or about November 28, 2017. The Court notes that the date of the letter from Riverside Abstract, LLC annexing the title report is addressed to “Eli Leftokwitz, Esq.” who is also listed in Schedule D of the Contract as Plaintiff’s attorney for purposes of service of notices. The title report is dated November 28, 2017, approximately two and a half months prior to the expiration of the due diligence period on February 16, 2018 and nearly two-and-one-half years before Plaintiff sought to terminate the Contract on May 12, 2020. Moreover, the Court finds that Plaintiff waived any purported breaches when it entered into three subsequent amendments to the Contract, which provided for additional payments, after Plaintiff had notice of the 1983 Appropriation (see for example Akeroyd v. Soho 311 Dev., Inc., 124 AD3d 532 [1st Dept 2015]). Accordingly, Plaintiff’s arguments that the 1983 Appropriation renders the title unmarketable are without merit in light of Plaintiff’s waiver (Akeroyd, 124 AD3d 532). Based upon the Court’s findings, defendants’ application to dismiss Plaintiff’s cause of action for breach of express warranty is granted. The documentary evidence submitted on this record utterly refutes Plaintiff’s factual allegations and conclusively establishes a defense as a matter of law (Furman, 105 AD3d 807). Failure to State a Cause of Action Defendants seek to dismiss Plaintiff’s causes of action for conversion and unjust enrichment as barred by the express contract. Defendants also seek to dismiss Plaintiff’s cause of action for fraud on the basis that it is duplicative of the contract claim. Defendants note that Plaintiff’s conversion claim seeks to recover the $1,950,000 initial deposit and additional deposits, but not the $605,000 in adjournment payments. Defendants assert that the conversion claim fails because it is predicated on a breach of contract noting that Plaintiff pleads that Defendant Rydan has an obligation to return the monies “under the terms of the Contract of Sale”. Defendants also assert that the conversion claim fails because defendant Rydan never exercised dominion and control over the monies noting that the monies are being held in trust by a third-party escrowee in accordance with the Contract. Defendants also argue that Plaintiff’s unjust enrichment claim on the basis that Defendant Rydan “willfully misstated [its] ability to convey title to the Property in order to receive payments from Plaintiff pursuant to the Contract of Sale and the Amendments” is also barred as a matter of law because the transaction at issue is governed by the Contract. Defendants further argue that Plaintiff’s cause of action for fraud must be dismissed where it is predicated on a breach of contract. Defendants assert that Plaintiff’s fraud claim does not allege any false representations collateral to the contract other than the purported false contractual warranties. Plaintiff argues that defendants have an obligation to return the down-payment because they are unable to deliver title in accordance with Schedule A of the Contract. Plaintiff insists that defendants have exercised “unauthorized dominion” over the funds because they took $2,500,000 with the promise that they would deliver title to the property as described in Schedule A. Plaintiff emphasizes that it paid more than $2,500,000 for title to the subject property that the defendants are unable to deliver. Plaintiff insists that defendants would be unjustly enriched if they were permitted to retain the down-payment and the additional payments which Plaintiff made in reliance on defendants’ misrepresentation that the property is of a greater size and value. Plaintiff argues that the fraud claim must survive the motion to dismiss because it justifiably relied on the description of the property in Schedule A which omits the 1983 Appropriation, and on defendants’ representation that they had no knowledge of any taking of all or any part of the property. Plaintiff insists that this willfully withheld information reduces the size, development potential, and value of the property. Generally, in determining a motion under CPLR 3211(a)(7), “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaints in the complaint and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one’” (Leon, 84 NY2d 83 citing Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). Caselaw has long determined that “[c]onversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights. Money…may be subject to a conversion action. However, an action for conversion can not be validly maintained where damages are merely being sought for breach of contract” (Peters Griffin Woodward, Inc. v. WCSC, Inc., 88 AD2d 883 [1st Dept 1982] see also Cronos Group Ltd. v. XComIP, LLC, 156 AD3d 54 [1st Dept 2017]). The Court finds on this record that Plaintiff’s First Cause of Action asserting conversion is “legally insufficient because it merely restates a claim for damages for breach of contract” (Cronos Group Ltd., 156 AD3d 54). In fact, Plaintiff seeks damages in its conversion claim which directly arises from the breach of the Contract (see North American Airlines, Inc. v. Wilmington Trust Co., 171 AD3d 616 [1st Dept 2019]). Citing to a provision in the Contract, Paragraph 60 of Plaintiff’s Verified Complaint provides, “Upon termination, under the terms of the Contract of Sale, Rydan Realty was obligated to refund the Downpayment (including all Additional Deposits) to and to reimburse Plaintiff for certain expenses”. Clearly Plaintiff’s cause of action for conversion is deeply rooted in its claim for damages based upon its breach of contract claim. Accordingly, defendants’ application to dismiss Plaintiff’s First Cause of Action (Conversion against Rydan Realty) is granted. The Court also finds that Plaintiff’s Third Cause of Action asserting fraud against all the defendants “falls short under the principle that a fraud claim is not stated by allegations that simply duplicate, in the facts alleged and damages sought, a claim for breach of contract” enhanced only by Plaintiff’s conclusory allegations that the defendants knowingly made the false representation and/or willfully failed to disclose the 1983 Appropriation with the intent to defraud (see Cronos Group Ltd., 156 AD3d 54). Given that Plaintiff’s fraud claim asserts the same facts which underlie Plaintiff’s cause of action for breach of contract, those facts are not collateral to the contract, and Plaintiff does not seek damages which cannot be recoverable under a contract, the fraud claim must be dismissed (see for example Financial Structures Limited, et al v. UBS AG, et al, 77 AD3d 417 [1st Dept 2010]). Accordingly, defendants’ application to dismiss Plaintiff’s Third Cause of Action (Fraud Against All Defendants) is granted. Similarly, the Court further finds that Plaintiff’s Fourth Cause of Action asserting unjust enrichment must also be dismissed for failure to state a cause of action. It is well-settled that “[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter” (see Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382 [1987]). A claim for unjust enrichment is deemed a quasi contract (see Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382 [1987]; Goldman v. Simon Property Group, Inc., 58 AD3d 208 [2008]), and Plaintiff’s claim is based on the same subject matter of the breach of contract claims (see for example Goldman v. Simon Property Group, Inc., 58 AD3d 208 [2008]). Plaintiff does not allege “circumstances extraneous to, and not constituting of, the contract, although it may be connected with and dependent upon the contract” (Clark-Fitzpatrick, Inc., 70 NY2d 382). Accordingly, defendants’ application to dismiss Plaintiff’s Fourth Cause of Action (Unjust Enrichment Against Rydan Realty) is granted. Based upon the Court’s findings hereinabove, Defendants’ application seeking to dismiss Plaintiff’s Verified Complaint is granted in its entirety. This Court does not reach Plaintiff’s request for leave to amend the Verified Complaint. The Court notes that Plaintiff did not properly cross-move for leave to amend the Verified Complaint. In light of the foregoing, it is hereby ORDERED AND ADJUDGED that Defendants’ application seeking to dismiss Plaintiff’s Verified Complaint in its entirety is hereby granted in accordance with the Court’s findings hereinabove; and it is further ORDERED AND ADJUDGED that the Clerk shall dismiss this instant action in its entirety. The foregoing shall constitute the decision and order of this Court. Dated: May 12, 2021
