TRN, LLC v. Ventura Air Services, Inc.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRN, LLC,
Plaintiff,
MEMORANDUM
AND ORDER
25-cv-05402 (JMW)
-against-
VENTURA AIR SERVICES, INC.,
Defendant.
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A P P E A R A N C E S:
Harry Jay Hulings
Jason Murray Davis
Davis & Santos, PLLC
719 S Flores St
San Antonio, TX 78204
Robert Maxwell Tanner
Michael Tremonte
Sher Tremonte LLP
90 Broad Street, 23rd Floor
New York, NY 10004
Attorneys for Plaintiff and Counter Defendant
Robert David Schulte
Schulte Booth, P.C.
14 N Hanson St
Easton, MD 21601
Attorney for Defendant and Counter Claimant
WICKS, Magistrate Judge:
Plaintiff TRN, LLC (“TRN”) commenced this action on September 25, 2025 against
Defendant Ventura Air Services, Inc. (“Ventura”), asserting claims for breach of contract, unjust
enrichment, conversion, and replevin, and seeking damages pertaining to Ventura’s alleged
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refusal to return the Bombardier Inc. CL-600-2Bi16 aircraft (“Aircraft”) leased by TRN to
Ventura pursuant to the parties’ Exclusive Aircraft Lease and Operating Agreement
(“Agreement”). (See generally ECF No. 1.)
The parties are before the Court on TRN’s partial motion to dismiss two of Ventura’s
Counterclaims for breach of the implied covenant of good faith and fair dealing (Count II) and
fraud (Count III) pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 32.) For the following reasons,
TRN’s partial motion to dismiss (ECF No. 32) is GRANTED.
BACKGROUND
The parties entered into the Agreement on October 10, 2023 through which TRN leased
the Aircraft to Ventura for a term of three years. (ECF No. 1 at ¶¶ 8, 11.) Through the Agreement,
Ventura possessed the right to use the Aircraft as needed in its air charter and commercial
carriage business. (Id. at ¶ 11.) In exchange, Ventura was required to pay TRN a monthly fixed
lease payment of $10,000 per month. (See id. at ¶ 12.) Under the terms of the Agreement,
Ventura was also required to maintain the Aircraft in excellent working condition which,
according to TRN, Ventura failed to do and caused the Aircraft to fall into disrepair. (Id. at ¶¶ 1,
13, 23.)
The Agreement further provides that it may be terminated or suspended by either party if
certain conditions are not met and that TRN may terminate the Agreement without payment of an
early termination fee for events like “breach or default of any of the conditions of the Agreement
or any other agreement between the parties by Ventura and the failure of Ventura to cure or
remedy such breach or default within ten days after receipt of notice thereof from TRN.” (Id. at ¶
15 (cleaned up) (referencing Agreement at § 17(b)). TRN, under the Agreement, may also
terminate the Agreement “for any or no reason with 90 days advanced written notice” to Ventura
but then must pay Ventura an “Early Termination Fee” of $500,000 during the first year,
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$300,000 during the second year, and $200,000 during the third year. (Id. at ¶ 16 (referencing
Agreement at § 17(c)). Upon the expiration or early termination of the Agreement, and payment
by TRN, Ventura was obligated to “return the Aircraft, logbooks, and associated items at [TRN’s]
sole cost and expense” or “make the Aircraft available for return by [TRN].” (Id. at ¶ 17
(referencing Agreement at § 17(d)).
On July 14, 2025, TRN contends that Ventura’s failure to “maintain, repair, and service
the Aircraft became apparent” when Ventura cited to “a mechanical problem” which prevented
TRN’s principal, Toby Neugebauer (“Neugebauer”) and several of his guests, from timely
departing Aspen, Colorado and caused them to miss their “important business function” in
Pittsburgh, Pennsylvania. (Id. at ¶ 18.) The following day, on July 15, 2025, TRN sent Ventura a
letter stating that Ventura breached the Agreement by failing to maintain the Aircraft in
accordance with the Agreement’s terms. (Id. at ¶ 19 (referencing “Ventura’s substandard
maintenance and related mechanical failures”)). TRN also cites to additional “mechanical
failures, substandard maintenance, system failures . . . [and] deteriorating exterior paint” on the
Aircraft caused by Ventura’s lack of care. (Id. at ¶¶ 19-22.) Ventura contends that it “did not fail
to perform any required maintenance” and that the Aircraft was in the same condition as it was
when sent by TRN. (ECF No. 23, Counterclaims at ¶¶ 19-20.)
Considering this purported breach of the Agreement, TRN exercised its right to terminate
the Agreement pursuant to Section 17 on July 15, 2025, without payment of a termination fee.
(ECF No. 1 at ¶¶ 2, 25; ECF No. 23, Counterclaims at ¶¶ 23-24.) Consequently, Ventura refused
to return the Aircraft, effectively holding it “hostage” until TRN paid Ventura the termination fee
pursuant to Section 20 of the Agreement which provides that “[Ventura] shall have a lien upon
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and may retain possession of the Aircraft until all amounts due [Ventura] under this Agreement
have been paid in full.” (ECF No. 1 at ¶ 3; ECF No. 23, Counterclaims at ¶¶ 26-28.)
Accordingly, TRN asserts several causes of action, namely, for breach of the Agreement,
unjust enrichment, conversion, and replevin. (See ECF No. 1 at pp. 8-11.) On November 5, 2025,
Ventura filed its Amended Answer with Counterclaims against TRN for breach of the Agreement
because of TRN’s refusal to pay the $300,000 termination fee, breach of the implied covenant of
good faith and fair dealing, and fraud. (See generally ECF No. 23.) Nearly one month later, on
December 10, 2025, TRN filed a motion for a pre-motion conference regarding TRN’s
anticipated partial motion to dismiss Ventura’s Counterclaims for breach of the implied covenant
of good faith and fair dealing and for fraud pursuant to Rule 12(b)(6). (See ECF No. 29.) The
Court then waived the pre-motion conference requirement and directed the parties meet and
confer and submit a proposed briefing schedule on TRN’s anticipated partial motion to dismiss.
(Electronic Order dated December 11, 2025.) On December 17, 2025, the Court adopted the
parties’ briefing schedule. The parties then bundle filed their motion papers on January 16, 2026.
(ECF No. 32.) The Court held Oral Argument on TRN’s motion on March 12, 2026. (See
Electronic Order dated January 23, 2026.)
LEGAL FRAMEWORK
“In considering a motion to dismiss a counterclaim, the court applies the same standards
as a motion to dismiss a complaint.” Zurich American Life Ins. Co. v. Nagel, 571 F. Supp. 3d
168, 175 (S.D.N.Y. 2021); Xerox Corp. v. Lantronix, Inc., 342 F. Supp. 3d 362, 367 (W.D.N.Y.
2018) (“Federal Rule of Civil Procedure 12(b) applies equally to claims and counterclaims;
therefore, a motion to dismiss a counterclaim is evaluated under the same standard as a motion to
dismiss a complaint.”) (internal marks omitted) (citation omitted). The Court must assume the
truth of the allegations.
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To survive a motion to dismiss under Rule 12(b)(6), a counterclaim must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A counterclaim is properly dismissed
where, as a matter of law, ‘the allegations in a complaint, however true, could not raise a claim of
entitlement to relief.’” Naor World Media Films, Inc. v. JC Production, No. 22 Civ. 8267 (AT),
2024 WL 1177977, at *2 (S.D.N.Y. Mar. 19, 2024) (quoting Twombly, 550 U.S. at 558).
“When evaluating a motion to dismiss counterclaims for failure to state a claim, a court
‘must accept all well-pleaded facts as true and construe the answer and counterclaims in the light
most favorable to the nonmoving party.’” Phoenix Companies, Inc. v. Concentrix Ins. Admin.
Sols. Corp., 554 F. Supp. 3d 568, 585 (S.D.N.Y. 2021) (citation omitted); Koch v. Christie’s Int’l
PLC, 699 F.3d 141, 145 (2d Cir. 2012) (noting that when considering a motion to dismiss under
12(b)(6), the court must assume all well-pleaded facts to be true, “drawing all reasonable
inferences in favor of the plaintiff”). However, this tenet does not apply to mere legal
conclusions, and a pleading that offers only “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. More is required.
Indeed, “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Id. (“[T]he pleading must contain something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.”) (citation omitted).
DISCUSSION
TRN seeks dismissal of Ventura’s counterclaim for breach of the implied covenant of
good faith and fair dealing on a theory that this counterclaim is entirely duplicative of Ventura’s
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breach of contract counterclaim. (See ECF No. 32-1 at pp. 10-13.) Moreover, TRN moves to
dismiss Ventura’s fraud counterclaim because Ventura fails to plead sufficient facts to make out a
prima facie case under New York law. (See id. at pp. 13-18.) Ventura vigorously opposes, arguing
that it may plead its implied covenant counterclaim in the alternative and thus should not be
dismissed. (See ECF No. 32-2 at pp. 6-7.)
Although in opposition Ventura avers that it has sufficiently “pleaded fraud with sufficient
particularity” to survive dismissal (see id. at pp. 7-9), at oral argument counsel stipulated to
withdraw the fraud claim, without prejudice.
i. 	Breach of the Implied Covenant of Good Faith and Fair Dealing
Under New York Law, there is an implied covenant of good faith and fair dealing
attendant to all contracts. Khan v. K1 Investment Management LLC, 2:24-cv-07860 (JMW), 2025
WL 1808725, at *10 (E.D.N.Y. July 1, 2025) (citing Dalton v. Educ. Testing Serv., 663 N.E.2d
289, 291 (N.Y. 1995)) (“Implicit in all contracts is a covenant of good faith and fair dealing in
the course of contract performance”); see also 511 West 232nd Owners Corp v. Jennifer Realty
Co., 773 N.E.2d 496, 500 (N.Y. 2002). To state a claim for breach of this implied covenant, a
plaintiff must plead that: (1) the defendant owes the plaintiff a duty to act in good faith and
conduct fair dealing, (2) the defendant breached that duty, and (3) the breach proximately caused
the plaintiff's damages. Great Lakes Reinsurance (UK) SE v. Herzig, 413 F. Supp. 3d 177, 183
(S.D.N.Y. 2019) (cleaned up) (citation omitted). “Broadly stated, the implied covenant ‘embraces
a pledge that ‘neither party shall do anything which will have the effect of destroying or injuring
the right of the other party to receive the fruits of the contract’ ” Singh v. City of New York, 217
N.E.3d 1, 5 (N.Y. 2023) (quoting Jennifer Realty Co., 773 N.E.2d at 500); see also Burton v.
Label, LLC, 344 F. Supp. 3d 680, 696 (S.D.N.Y. 2018) (noting the implied covenant
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encompasses “any promises which a reasonable person in the position of the promisee would be
justified in understanding were included.”) (citation omitted).
However, “New York law ... does not recognize a separate cause of action for breach of
the implied covenant of good faith and fair dealing when a breach of contract claim is also pled
based on the same facts.” Woodhams v. Allstate Fire & Cas. Co., 748 F. Supp. 2d 211, 223
(S.D.N.Y. 2010), aff'd, 453 Fed. App'x. 108 (2d Cir. 2012) (summary order). It follows, therefore,
that “[a] claim for a breach of good faith and fair dealing survives a motion to dismiss ‘only if it
is based on allegations different from those underlying the breach of contract claim, and the
relief sought is not intrinsically tied to the damages that flow from the breach of contract.’”
DeSimone v. Select Portfolio Servicing, Inc., 748 F. Supp. 3d 136, 177 (E.D.N.Y. 2024) (quoting
JN Contemp. Art LLC v. Phillips Auctioneers LLC, 29 F.4th 118, 128 (2d Cir. 2022) (applying
New York law)). Indeed, “[u]nder New York law, claims for breach of the implied covenant of
good faith which seek to recover damages that are intrinsically tied to the damages allegedly
resulting from the breach of contract must be dismissed as redundant.” Davis v. ODN I GmbH,
No. 24-cv-01463 (MMG), 2025 WL 964891, at *5 (S.D.N.Y. Mar. 31, 2025) (referencing
Casalino Interior Demolition Corp. v. Custom Design Data, Inc., 653 N.Y.S.2d 35, 36 (App. Div.
2d Dep't 1997)).
Where duplicative or redundant, the breach of the implied covenant of good faith and fair
dealing claim will be dismissed, allowing the breach of contract claim to survive. See Deutsche
Bank Nat. Tr. Co. v. Quicken Loans Inc., 810 F.3d 861, 869 (2d Cir. 2015) (holding that “because
the facts underlying both [breach of contract and breach of the implied covenant] claims are
identical and the [plaintiff] seeks identical remedies, the claim for breach of the implied covenant
was properly dismissed as duplicative”); see also Beck v. Metropolitan Bank Holding Corp., 747
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F. Supp. 3d 442, 463-64 (E.D.N.Y. 2024) (dismissing claim for breach of the implied covenant of
good faith and fair dealing when found to be duplicative of the contract claim).
Here, the facts underlying Ventura’s Counterclaim for breach of the implied covenant of
good faith and fair dealing are identical to those underlying its breach of contract Counterclaim.
For example, Ventura avers that TRN’s claims of maintenance failure are “pre-textual and
designed to deny [Ventura] the benefits of the Parties’ agreement, namely the Termination Fee.”
(ECF No. 23, Counterclaim at ¶ 39.) This precise failure to pay the termination fee also forms the
basis for Ventura’s breach of contract Counterclaim which Ventura has ironically labelled
“Breach of Contract - Refusal to Pay Termination Fee”. (Id. at ¶¶ 33, 35 (“TRN has refused to
pay the termination fee”), ¶ 36 (“TRN’s refusal to do so constitutes a breach of contract”)).
Indeed, like here,“[w]here a claim of breach of the implied covenant arises from the same facts
as a separate claim of breach of an express contractual provision . . . the former should be
dismissed as duplicative.” Security Plans, Inc. v. CUNA Mut. Ins. Soc., 261 F.R.D. 4, 9
(W.D.N.Y. 2009) (emphasis added) (collecting cases); see Colgate-Palmolive Co. v. Lanfranchi
North America, Inc., No. 1:18-cv-09982 (ALC), 2020 WL 5440554, at *7 (S.D.N.Y. Sept. 8,
2020) (dismissing implied covenant claim as duplicate of breach of contract claim because both
claims relied on allegations about defendant’s “failure to replace or satisfactorily repair the
equipment as required by the terms of the contract”).
Additionally, the damages sought on both Counterclaims are identical. In fact, under the
implied covenant Counterclaim, Ventura contends that it suffered damages through TRN’s failure
to pay the $300,000 termination fee, the same damages that form the basis for its breach of
contract Counterclaim as well. (ECF No. 23, Counterclaim at ¶¶ 33, 37, 39, 42-43). Though
Ventura, in its implied covenant Counterclaim, asserts that it “has been damaged” as a result of
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TRN’s conduct, nowhere does Ventura allege, nor can the Court ascertain, how those damages
are distinguishable than those suffered under its breach of contract Counterclaim. See Khan,
2025 WL 1808725, at *10 (dismissing the breach of good faith and fair dealing counterclaims
because “Defendant fail[ed] to adequately differentiate the requested relief” sought in the
implied covenant counterclaim and the breach of contract counterclaim); see also Davis, 2025
WL 964891, at *5 (dismissing a breach of covenant of good faith and fair dealing claim where
damages under that cause of action were “intrinsically tied to” the damages requested for under a
breach of contract claim).
Ventura’s argument that it is “entitled to plead its implied covenant claim in the
alternative” is also unpersuasive under the circumstances presented here. (ECF No. 32-2 at p. 7.)
The Second Circuit has stated that the “anti-duplication” rule between breach of contract and
breach of the implied covenant “‘does not preclude a party from bringing a claim for breach of
the implied covenant of good faith and fair dealing’ alongside a claim for express breach of
contract when those claims ‘are brought in the alternative.’” Sorotzkin v. EmblemHealth Inc.,
2023 WL 7383169, at *2 (2d Cir. Nov. 8, 2023) (quoting Fantozzi v. Axsys Techs., Inc., No. 07-
CV-2667, 2008 WL 4866054, at *7 (S.D.N.Y. Nov. 6, 2008)).
That means that courts have permitted a party to plead the implied covenant claim in the
alternative only where the actions underlying the claim for breach of the implied covenant do not
relate to, or allege a violation of, an express contractual provision forming the basis for the
breach of contract claim. See Sorotzkin, 2023 WL 7383169, at *3 (“[I]f the allegedly improper
conduct did not breach an express contractual provision, that is precisely the circumstance in
which a party may maintain a claim for breach of the implied covenant” in the alternative); see
also Titus v. UMG Recordings, Inc., No. 1:23-cv-00015 (JLR), 2023 WL 8039622, at *11
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(S.D.N.Y. Nov. 20, 2023) (permitting the implied covenant claim to be pled in the alternative to
the breach of contract claim where plaintiff alleged that defendant “breached the implied
covenant of good faith and fair dealing ‘by secretly licensing its catalog to acquire an equity
stake in Spotify” which related to no explicit contractual provision). That is not what is
presented here.
.Instead, Ventura alleges that TRN acted with pre-textual motives “designed to deny
[Ventura] of he benefits of the Parties’ Agreement, namely the Termination Fee.” (ECF No. 23 at
¶ 39 (emphasis added)). In essence, Ventura’s claimed-of misconduct relates expressly to explicit
contractual provisions in the Agreement which form the basis of the breach of contract
Counterclaim. This is not the case where Ventura claims that TRN’s conduct has prevented
Ventura from performing or upholding its end of the contract. Rather, the crux of Ventura’s
implied covenant Counterclaim is that TRN has not complied with the Termination Fee, an
express contractual provision under the Agreement that forms the precise basis for Ventura’s
breach of contract Counterclaim.
Accordingly, Ventura’s breach of the implied covenant of good faith and fair dealing
Counterclaim is dismissed under Rule 12(b)(6) as duplicative of Ventura’s breach of contract
Counterclaim.
ii. 	Fraud
Counsel for Ventura stipulated to withdrawal of the fraud counterclaim, without prejudice
and with leave to renew should discovery uncover additional facts to support the current
assertions. If and when this fraud counterclaim is re-pled, however, it must nevertheless satisfy
Rule 9(b).
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Common law fraud in New York requires a plaintiff to allege “(1) a misrepresentation or
a material omission of a material fact which was false and known by [the] defendant to be false,
(2) made for the purpose of inducing the plaintiff to rely on it, and (3) justifiably relied upon by
the plaintiff, (4) who suffered an injury as a result of such reliance.” DM Manager LLC v. Fid.
Nat'l Info. Servs., Inc., No. 24-1217, 2025 WL 863338, at *2 (2d Cir. Mar. 19, 2025) (summary
order) (quoting City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 454 (2d Cir. 2008)).
Allegations of fraud must also comply with Rule 9(b)’s heightened pleading
requirements. See VR Glob. Partners, L.P. v. Petroleos de Venezuela, S.A., No. 24-1176-CV, 2024
WL 4891271, at *3 (2d Cir. Nov. 26, 2024) (citing Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo
Sec., LLC, 797 F.3d 160, 170–71 (2d Cir. 2015)). To comply with Rule 9(b), a plaintiff must “(1)
specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3)
state where and when the statements were made, and (4) explain why the statements were
fraudulent.” DM Manager, 2025 WL 863338, at *2 (quoting Lerner v. Fleet Bank, N.A., 459 F.3d
273, 290 (2d Cir. 2006)). Additionally, the Second Circuit requires a plaintiff to “plead the
factual basis which gives rise to a strong inference of fraudulent intent.” United States v. Strock,
982 F.3d 51, 66 (2d Cir. 2020) (quoting O'Brien v. Nat'l Prop. Analysts Partners, 936 F.2d 674,
676 (2d Cir. 1991)). A “strong inference” of fraud “may be established either (a) by alleging facts
to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging
facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.”
Id. (quoting Lerner, 459 F.3d at 290–91).
Ventura’s fraud Counterclaim asserts that TRN and Neugebauer still used the Aircraft
after TRN’s July 15, 2025 termination letter and did so with no intention of paying for those
flights. (ECF No. 23, Counterclaim at ¶ 51.) Such conduct, as Ventura claims, “evidences such a
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high degree of moral turpitude and such wanton dishonesty as to imply a criminal indifference to
civil obligations.” (Id. at ¶ 50.) “In other words, TRN and Mr. Neugebauer acted out of spite” by
conjuring up false claims of uncured maintenance failures but continued to use the Aircraft
following these complaints. (See id. at ¶¶ 45, 48, 52.) Even if counsel for Ventura did not
voluntarily withdraw the fraud Counterclaim, the fraud Counterclaim would fail for several
reasons.
First, Ventura does not identify, let alone allege, any false or misleading statement that
was made by TRN or Neugebauer. The only statement Ventura identifies is Neugebauer’s
statement to “Ventura personnel” that TRN had “no intention of paying the Termination Fee.”
(Id. at ¶ 47.) Nowhere does Ventura support its assertion that this statement was false or
misleading. If anything, TRN’s continued failure to pay the termination fee, which Ventura
acknowledges itself, confirms the veracity of Neugebauer’s statement rather than its falsity. See
id. at ¶ 24 (“TRN has refused to pay the Termination Fee”) ¶ 35 (same)); see also Footbridge
Ltd. v. Countryside Home Loans, Inc., No. 09 Civ. 4050 (PKC), 2010 WL 3790810, at *25
(S.D.N.Y. Sept. 28, 2010) (dismissing common law fraud claim because the pleading did not
“allege a material, false representation”).
Indeed, even assuming that it is Neugebauer’s statement that he had no intention of
paying the Termination Fee is the statement underlying Ventura’s fraud Counterclaim, it is well-
settled that a defendant is only liable for fraud rather than breach of contract “when he agrees to
a contract with the present intention of not honoring the contract.” United States v. Shellef, 732 F.
Supp. 2d 42, 69 (E.D.N.Y. 2010); Ccm Rochester, Inc. v. Federated Investors, Inc., 234 F. Supp.
3d 501, 507 (S.D.N.Y. 2017) (collecting cases); Century Pac., Inc. v. Hilton Hotels Corp., 528 F.
Supp. 2d 206, 222 (S.D.N.Y. 2007) (“A present expression of the intent to perform a future act is
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actionable as fraud only if actually made with a preconceived and undisclosed intention of not
performing it.”). Here, Ventura neglects to indicate that at the time of forming the Agreement,
Neugebauer or any other member of TRN had the intent to not pay the Termination Fee. In fact,
during Oral Argument, counsel for Ventura admitted that he is not pleading a fraudulent
inducement claim and that Neugebauer’s statement was made after contract formation. As such,
Ventura’s complained-of conduct properly sounds in breach of contract, not fraud.
Second, Ventura fails to allege how TRN made a statement for the purpose of inducing
reliance by Ventura. While Ventura avers that the “procurement of the post-July 15, 2025 flights”
was done with an intent to defraud Ventura of the “substantial resources necessary to effect these
flights,” Ventura neglects to establish how it was induced by any statement made by TRN or
Neugebauer about these flights. Nor is the Court able to decipher what reliance TRN was
attempting to gain from the statement that it was not going to pay the termination fee. See Baldeo
v. Airbnb, Inc., 2025 WL 3152716, at *2 (2d Cir. Nov. 12, 2025) (concluding that because
plaintiff did not plausibly allege that defendant “acted with an intent to induce, or that [plaintiffs]
reasonably relied on any alleged misrepresentations” the fraud claim was dismissed under New
York law); see also DoubleLine Capital LP v. Odebrecht Finance, Ltd., 323 F. Supp. 3d 393, 463
(S.D.N.Y. 2018) (dismissing fraud claim under New York law because based on the allegations it
was “entirely unclear” how the statements were relied upon by plaintiffs).
Third, similarly, Ventura fails to allege facts demonstrating it relied upon any allegedly
false statement. In order to state a fraud claim, “a plaintiff must have relied on the fraudulent
statement ‘in ignorance of its falsity.’” Musalli Factory for Gold & Jewellry v. JPMorgan Chase
Bank, N.A., 261 F.R.D. 13, 19 (S.D.N.Y. 2009) (quoting Murray v. Xerox Corp., 811 F.2d 118,
121 (2d Cir. 1987)); JP Morgan Chase Bank v. Winnick, 350 F. Supp. 2d 393, 405 (S.D.N.Y.
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2004) (“Reliance is necessary in order to demonstrate causation; where a plaintiff actually knew
at the time a representation was made that it was false, she cannot claim to have relied on the
truth of that representation, and any injury she suffers is therefore not attributable to the
defendant.”). Here, Ventura’s fraud Counterclaim solely references the allegedly fraudulent
actions taken by TRN and Neugebauer, but does not mention how Ventura relied upon these
actions, let alone any statements. Nor does Ventura point to any detriment or harm it suffered as a
result of these actions or statements.
Fourth, the pleading as it stands fails to offer anything more than conclusory assertions of
motive and bad faith as to how TRN acted with fraudulent intent. Ventura alleges that TRN and
Neugebauer knew and intended not to pay the Termination Fee and subsequently “acted out of
spite,” with a “high degree or moral turpitude,” and “wanton dishonesty as to imply a criminal
indifferent to civil obligations” in continuing to use the Aircraft after July 15, 2025. (ECF No.
23, Counterclaims at ¶¶ 45, 50, 52.) Ventura’s Counterclaim is devoid of facts necessary to
support the heightened standard necessary to successfully plead common-law fraud under New
York law. Moreover, Ventura does not establish, let alone allege, any “facts to show that
defendants had both motive and opportunity to commit fraud” or “facts that constitute strong
circumstantial evidence of conscious misbehavior or recklessness.” Gardner v. Sensio Inc.,645 F.
Supp. 3d 310, 322 (S.D.N.Y. 2022) (dismissing claim of fraud for failure to meet Rule 9(b)’s
heightened pleading requirement where the allegations were “generalized”); Dashnau v. Unilever
Mfg. (US), Inc., 529 F. Supp. 3d 235, 250 (S.D.N.Y. 2021) (dismissing fraud claim because
plaintiff only alleged defendant’s fraudulent intent “in conclusory fashion”).
Accordingly, Ventura’s Counterclaim for fraud is deemed withdrawn, without prejudice
and with leave to renew following discovery.
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CONCLUSION
For the foregoing reasons, TRN’s motion to dismiss Ventura’s two Counterclaims for
breach of the implied covenant of good faith and fair dealing (Count II) and fraud (Count III)
under Rule 12(b)(6) (ECF No. 32) is GRANTED and those claims are dismissed.
Dated: Central Islip, New York
March 12, 2026
SO ORDERED,
/S/ James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
Case 2:25-cv-05402-JMW Document 39 Filed 03/12/26 Page 15 of 15 PageID #:
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