Egan v. Coventry Health Care Workers Compensation, Inc. et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
WILLIAM EGAN, individually and as assignee of
CompMed Advantage, Inc.,
Plaintiff,
v. 	1:25-cv-00451 (AMN/DJS)
COVENTRY HEALTH CARE WORKERS
COMPENSATION, INC., and COVENTRY WORKERS
COMP SERVICES, a division of Enlyte,
Defendants.
________________________________________________
APPEARANCES:
GRANICH LAW FIRM
21 Colvin Avenue
Albany, New York 12206
Attorneys for Plaintiff
GORDON REES SCULLY MANSUKHANI
One Battery Park Plaza – 28th Floor
New York, New York 10004
Attorneys for Defendants
OF COUNSEL:
JOSEPH A. GRANICH, ESQ.
FRANCES C. SLUSARZ, ESQ.
MARK BECKMAN, ESQ.
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On November 29, 2024, plaintiff William Egan (“Plaintiff”) commenced this action in New
York State Supreme Court, alleging breach of contract claims against defendants Coventry Health
Care Workers Compensation, Inc. (“Coventry”) and Coventry Workers Comp Services, a division
of Enlyte (“Enlyte” and, together with Coventry, “Defendants”). Dkt. No. 2 (“Complaint”). On
April 10, 2025, Defendants removed this action to the United States District Court for the Northern
District of New York pursuant to 28 U.S.C. § 1332. Dkt. No. 1.
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Presently before the Court are Defendants’ motion to dismiss pursuant to Rule 12(b)(5) and
(b)(6) of the Federal Rules of Civil Procedure, Dkt. No. 22 (“Motion”); Dkt. No. 33, and Plaintiff’s
cross-motion to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure, Dkt. No. 30.
For the reasons set forth below, the Court grants the Motion and denies Plaintiff’s cross-motion.
II. 	BACKGROUND
A. The Parties
Plaintiff resides in New York and “was the sole shareholder of CompMed Advantage, Inc.
[“CompMed”] and is the assignee of all rights, contracts, and claims of CompMed[ ].” Dkt. No.
2 at ¶ 1. Plaintiff alleges that CompMed was a corporation organized under New York state law
with its principal place of business in New York. Id. at ¶ 2. Plaintiff alleges that, at some point,
CompMed “was subsequently dissolved after transferring and assigning all of its remaining rights,
contracts, and claims to” Plaintiff “individually.” Id. Plaintiff contends that “[a]s a result of this
assignment, [he] possesses the right to seek recovery against the Defendants herein.” Id.
Plaintiff alleges that Coventry is a corporation organized under Delaware law with its
principal place of business in Pennsylvania, id. at ¶ 3, and that Enlyte is a corporation organized
under California law, id. at ¶ 4. With respect to these entities, Plaintiff alleges that:
The exact nature of the relationship between Coventry and Enlyte is not presently
known to the Plaintiff and therefore both entities are included as party defendants
in this action, and collectively referred to herein as “Defendants,” in an effort to
ensure that the Plaintiff has the capacity to recover from the proper party ultimately
found to be liable under the facts present here. 	The allegations asserted in this
Complaint against Coventry apply equally to Enlyte, to the extent it is the successor,
affiliate or parent of Coventry.
Id. at ¶ 5.
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B. Plaintiff’s Factual Allegations
1. 	The Agreement
Plaintiff alleges that his claims arise from an “Independent Consultant Agreement” (the
“Agreement”). Id. at 3, ¶ 6. 1 Plaintiff attaches a copy of the Agreement to the Complaint as an
exhibit. Id. at 10-18; see also Santos v. Kimmel, 154 F.4th 30, 33 (2d Cir. 2025) (stating that when
evaluating a motion to dismiss under Rule 12(b)(6), a court may consider “the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint.”) (citation omitted).
The Agreement identifies Coventry and CompMed as the parties, and defines CompMed
as the “Consultant.” 	Id. at 11, 17. 	Coventry and CompMed are the only signatories to the
Agreement. Id. at 17. The Agreement states that it is effective February 1, 2013 and that its term
can be renewed, unless terminated. Id. at 11, Art. 2.
As relevant here, the Agreement sets forth various “client management and service
functions” that “Consultant will assist Coventry by performing” for “Client(s).” Id. at 12, § 4.2.
In exchange, “Coventry will pay Consultant a commission upon the terms and conditions of this
Article 6[.]” Id. at 13, § 6.1; see also id. at 3, ¶ 8. Article 6 provides in pertinent part that:
Coventry will pay Consultant the commission as set forth in a fully-executed
Schedule of Services and Commissions (“Schedule”), a form of which is attached
hereto as Exhibit I. Additional Schedules may be executed from time to time by
Coventry and Consultant when Services are sold to a Client by Consultant. When
fully executed, each such schedule shall be incorporated into, and become a part of,
this Agreement.
1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic
filing system, and not the documents’ internal pagination. 	The second and third pages of the
Complaint number different allegations with the same paragraph numbers. Compare Dkt. No. 2
at 2, ¶¶ 6-8, with id. at 3, ¶¶ 6-8.
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Id. at 13, § 6.2. 	The final page of the Agreement is an executed Schedule, again signed by
CompMed and Coventry, and states that it is “Schedule Number: 1[.]” Id. at 18. According to this
Schedule, “‘Client’ means New York State Insurance Fund (‘NYSIF’)[.]” Id. at 18, § 1.1. Plaintiff
does not attach any other executed Schedules, nor does he allege that there are any further
Schedules. See generally Dkt. No. 2.
Section 6.3 of the Agreement (entitled “Commission Payment”) provides that “Coventry
will pay a monthly commission to Consultant on or before the fifteenth (15 th ) of the month[.]” Id.
at 13, § 6.3. Section 6.4 (entitled “Commission Termination”) provides that “Consultant may earn
no further commission relating to a specific Client as of[,]” as relevant here: “6.4.4 The date the
relationship between Consultant and such Client is terminated by Consultant or Client for any
reason. 	Consultant must notify Coventry immediately of any such termination.” 	Id. at 13-14,
§ 6.4.
Article 7 of the Agreement (entitled “Termination”) provides in pertinent part that:
This Agreement, or any Scheduled appended to this Agreement, may be terminated
upon notice thereof given by either party if any one of the following occurs:
7.1 	Default. 	Failure of either party to meet any material covenant,
agreement or obligation set forth in this Agreement (“Default”) if
the Defaulting party has not cured the Default within thirty (30) days
after receipt of written notice thereof.
. . . .
7.4 	Other Terminations. If any of the conditions set forth in Section 6.4
occur.
Id. at 14, Art. 7.
Article 9 of the Agreement (entitled “No Assignment”) provides in pertinent part that:
“Consultant may not assign or transfer its rights or obligations under this Agreement, whether by
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operation of law or otherwise, without the prior written consent of Coventry. 	Any attempted
assignment or transfer by Consultant in violation of this Article 9 is void[.]” Id. at 15, Art. 9.
Section 10.3 of the Agreement (entitled “No Third Party Beneficiaries”) provides in
pertinent part that: “This Agreement is entered into by and between the parties hereto solely for
their benefit. The parties have not created or established any third party beneficiary status or rights
in any person or entity not a party hereto.” Id. at 15, § 10.3.
Section 10.6 of the Agreement (entitled “Binding Effect”) provides that “[t]his Agreement,
is binding upon and inures to the benefit of the parties hereto and their permitted successors and
assigns.” Id. at 16, § 10.6.
Section 10.7 of the Agreement (entitled “Entire Agreement”) provides that “[t]his
Agreement, including any riders, attachments or amendments hereto, constitutes the entire
agreement between the parties and supersedes any prior or contemporaneous agreements or
understandings, whether oral or written, regarding the subject matter addressed herein.” Id. at 16,
§ 10.7.
2. 	Performance under the Agreement
Plaintiff alleges that performance under the Agreement consisted of “provid[ing] benefits
consulting services to companies, including insurance carriers, self-insured employers, and other
entities (referred to in the Agreement as ‘Clients’)[.]” 	Id. at 3, ¶ 7. 	Plaintiff generally alleges
“perform[ance of] the consulting services as agreed in the Agreement for Coventry to the mutual
benefit of the parties to this Agreement[.]” Id. at ¶ 9.
Plaintiff further alleges that, “[i]n furtherance of its obligations under the Agreement,
Coventry issued a check dated January 22, 2019, in the amount of $174,639.32, representing the
payment due for the consulting services provided by . . . [Plaintiff to] Clients for Coventry during
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the month of December 2018.” Id. at ¶ 12. Plaintiff states that a copy of this document is attached
to Complaint as an exhibit. 	Id. 	The referenced document is a stub, not a check. 	Id. at 22
(“DETACH AND RETAIN THIS STUB FOR YOUR RECORDS”). 	The document is dated
January 25, 2019, states that it is from a non-party (Aetna, Inc.), is addressed to CompMed, does
not mention Coventry or Enlyte, does not reference the Agreement, does not mention NYSIF or
any other client, and describes a slightly different payment amount of $174,629.32 as “December
2018 Finder’s Fee.” Id. Plaintiff does not attach any other alleged payments under the Agreement.
See generally Dkt. No. 2.
3. 	Termination of the Agreement
Plaintiff alleges that, on March 18, 2019, Coventry wrote a letter “pursuant to Section 6.4.4.
of the Agreement” “purporting to terminate the Agreement” as of November 30, 2018. Id. at ¶ 10.
Plaintiff attaches a copy of this letter to the Complaint as an exhibit. Dkt. No. 2 at 20-21. This
letter states that it is a “notice of termination” of the Agreement and that “[t]his termination is
being triggered pursuant to Section 6.4.4 of the Agreement. Schedule Number: 1 is the only Client
that was being serviced under the Agreement. Per the terms of the Agreement, you are required to
notify Coventry immediately if your relationship with a Client is terminated.” Id. at 20. The letter
also states that “termination is effective November 30, 2018.” Id.
C. Plaintiff’s Legal Claims
Based on Plaintiff’s factual allegations, he asserts two claims for breach of contract. First,
he claims that because he and CompMed “fully performed the consulting services to their Clients
in accordance with the Agreement[,]” termination of the agreement effective November 30, 2018
constituted a breach of an unspecified provision in the Agreement. 	Id. at ¶¶ 21-30. 	Second,
Plaintiff claims that Coventry’s termination notice breached Section 7.1 of the Agreement, because
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that provision provided for a thirty-day cure period prior to termination. 	Id. at ¶¶ 31-36. As a
result of these two claims, Plaintiff seeks approximately $884,000 in total damages. Id. at 7-8.
D. Procedural History
On November 29, 2024 Plaintiff commenced this action in New York State Supreme Court,
Saratoga County, via summons and complaint. 	Dkt. No. 1-1. 2 	On January 13, 2025, Plaintiff
submitted an affidavit of service indicating that he had effected service of the Complaint upon the
New York Secretary of State as Coventry’s statutory agent. Dkt. No. 22-3.
On April 10, 2025, Defendants filed a notice of removal (“Notice”) in this Court. Dkt. No.
1. Because Defendants appeared to file the Notice more than thirty days after service had occurred,
this Court ordered Defendants to show cause as to why this action should not be remanded. Dkt.
No. 7; see also Link Motion Inc. v. DLA Piper LLP, 103 F.4th 905, 911-12 (2d Cir. 2024) (stating
that courts are “mindful that (1) the removing party . . . ‘bears the burden of demonstrating the
propriety of removal,’ (2) ‘statutory procedures for removal are to be strictly construed’; and (3)
we must ‘resolve any doubts against removability’”) (first quoting O’Donnell v. AXA Equitable
Life Ins. Co., 887 F.3d 124, 128 (2d Cir. 2018); and then quoting Taylor v. Medtronic, Inc., 15
F.4th 148, 150 (2d Cir. 2021)); 28 U.S.C. § 1446(b)(1) (“The notice of removal of a civil action
or proceeding shall be filed within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action
or proceeding is based[.]”).
On May 5, 2025, Defendants responded, inter alia, that removal was timely because
Coventry had not actually received the Complaint until March 11, 2025, and “[t]he heavy weight
2 For convenience, the Court simply refers to the Complaint throughout this memorandum-decision
and order.
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of authority is to the effect that the time for removal, in cases in which service is made on a
statutory agent [such as the Secretary of State] runs from receipt of the pleading by the defendant
rather than the statutory agent.” 	Dkt. No. 13 at 1 (second alteration in original) (quoting
Hallenbeck v. Transgas, Inc., 53 F. Supp. 2d 543, 544 (N.D.N.Y. 1999)). Plaintiff did not respond
to Defendants’ submission, despite being given the opportunity to do so. Dkt. No. 7. The Court
subsequently found good cause that removal was timely and that this action should not be
remanded. Dkt. No. 19.
After numerous requests for extensions of time from both Defendants and Plaintiff, see
Dkt. Nos. 6, 15, 21, 25, 28, 32, Defendants’ Motion and Plaintiff’s cross-motion were fully
submitted on October 14, 2025. Dkt. Nos. 22, 30, 33.
III. 	STANDARD OF REVIEW
A. Motion to Dismiss
1. 	Rule 12(b)(5)
Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant may move to
dismiss a pleading for insufficient service of process. See DiFillippo v. Special Metals Corp., 299
F.R.D. 348, 353 (N.D.N.Y. 2014). “On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the
burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir.
2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). To determine whether
service of process was sufficient, courts look to materials outside the pleadings “to determine what
steps, if any, the plaintiff took to effect service.” Flemming v. Moulton, No. 13-cv-1324, 2015 WL
5147035, at *4 (N.D.N.Y. Sept. 1, 2015) (citations omitted). If the Court determines that service
was insufficient, the court may dismiss the action, or in the alternative, grant leave to allow the
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plaintiff to cure the insufficiency. See Muhammad v. Price Chopper Corp., No. 24-cv-291, 2025
WL 460836, at *2 (N.D.N.Y. Feb. 11, 2025) (citation omitted).
2. 	Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (“Rule 12(b)(6)”) tests the legal sufficiency of a party’s claim for relief.
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). 	In considering legal sufficiency, a court
must accept as true all well-pled facts in the complaint and draw all reasonable inferences in the
pleader’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). This
presumption, however, does not extend to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to
relief,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation
omitted). Under this standard, a pleading’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” id. at 555 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570. 	“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citation omitted). 	“Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility
of ‘entitlement to relief.’’” 	Id. (quoting Twombly, 550 U.S. at 557). 	Ultimately, “when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief,” Twombly,
550 U.S. at 558, or where a plaintiff has “not nudged [his or her] claims across the line from
conceivable to plausible, [the] complaint must be dismissed,” id. at 570.
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B. Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure (“Rule 15(a)”) permits a party to amend
its pleading once as a matter of course “no later than: (A) 21 days after serving it, or (B) if the
pleading is one to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”
Fed. R. Civ. P. 15(a)(1)(A)-(B). “In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). When a cross-
motion for leave to file an amended complaint is made in response to a motion to dismiss under
Rule 12(b)(6), leave to amend will be denied as futile only if the proposed new claim cannot
withstand a 12(b)(6) motion to dismiss for failure to state a claim, i.e., if it appears beyond doubt
that the plaintiff can plead no set of facts that would entitle him to relief. 	See Ricciuti v. N.Y.C.
Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). 	When assessing futility, the court employs a
standard comparable to that utilized in assessing a motion to dismiss under Rule 12(b)(6). 	See
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (observing that “leave to amend
will be denied as futile only if the proposed new claim cannot withstand a 12(b)(6) motion to
dismiss”).
IV. 	DISCUSSION
Defendants have moved to dismiss (i) pursuant to Rule 12(b)(5), all claims against Enlyte
due to insufficient service; and (ii) pursuant to Rule 12(b)(6), all claims against Defendants for
failure to state a claim. See generally Dkt. No. 22. Plaintiff opposes and cross-moves for leave to
amend pursuant to Rule 15(a)(2). 3 	See generally Dkt. No. 30. 	Below, the Court addresses the
parties’ arguments to the extent necessary to resolve each motion.
3 Given the procedural posture of this matter, the Court agrees that leave to amend is required.
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A. Defendants’ Motion to Dismiss
1. 	Rule 12(b)(5)
Defendants argue that, under New York state law, Plaintiff had until March 29, 2025 to
effect service of the Complaint on Enlyte, but failed to do so. Dkt. No. 22-4 at 10-11; see also
N.Y. C.P.L.R. § 306-b (“Service of the summons and complaint . . . shall be made within one
hundred twenty days after the commencement of the action[.]”). 	According to Defendants,
Plaintiff could have “simply deliver[ed] an additional copy of the summons and Complaint to the
New York State Secretary of State when it served Coventry [in January 2025], thereby serving
both Defendants.” 4 Dkt. No. 22-4 at 11; see also Dkt. No. 22-3 (January 2025 affidavit of service).
Plaintiff responds that “this was not possible, as Enlyte is not registered with the New York
Department of State as a domestic or foreign corporation. 	Accordingly, the Secretary of State
would not have accepted service on their behalf[.]” Dkt. No. 30-10 at 7; see also N.Y. Bus. Corp.
§ 306(b)(1) (setting forth requirements for “[s]ervice of process on the secretary of state as agent
of a domestic or authorized foreign corporation”). 	Plaintiff contends that he instead effected
service upon Enlyte’s authorized agent in California. Dkt. No. 30-10 at 7; see also N.Y. C.P.L.R.
§ 311(a)(1) (“Personal service upon a corporation . . . shall be made by delivering the summons as
follows: (1) upon any domestic or foreign corporation . . . to any other agent authorized by
appointment or by law to receive service.”). 	Plaintiff submits a corresponding affidavit
demonstrating service “upon Coventry Workers Comp Services, a division of Enlyte” 5 at CT
4 Because the Motion does not challenge the sufficiency of service as to Coventry, Defendants
have waived this defense. 	See, e.g., Khan, 360 F. App’x at 204 (“[T]he defense of insufficient
service of process may be waived by a party’s failure to either raise it in a motion under Rule 12(b)
of the Federal Rules of Civil Procedure[.]”) (citing Fed. R. Civ. P. 12(h)(1)). The Motion also does
not raise any challenge to personal jurisdiction beyond the sufficiency of process as to Enlyte.
5 As noted earlier, see supra Section I, this is Enlyte, which is the second of the two Defendants
named in the Complaint, Dkt. No. 2 at 1.
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Corporation System’s address in California on March 11, 2025. Dkt. No. 30-4. Plaintiff further
argues that the one-page “Service of Process Transmittal Summary” (“Summary”) subsequently
prepared by CT Corporation System was sent to an individual with an “@enlyte.com” email
address. 	Dkt. No. 30-5; see also Dkt. No. 30-10 at 8 (“Where service is timely, directed to the
correct agent, and results in actual notice, dismissal is unwarranted.”).
In their reply, Defendants do not contest that (i) Enlyte was not registered in New York as
a domestic or foreign corporation; (ii) CT Corporation System was Enlyte’s authorized agent in
California; (iii) Plaintiff’s affidavit of service states that service of process was made upon Enlyte,
via CT Corporation System, on March 11, 2025; (iv) CT Corporation System received service of
process on March 11, 2025; or (v) that CT Corporation System transmitted service of process to
an Enlyte email address. Dkt. No. 33 at 4. Defendants also do not contest Plaintiff’s legal position
that New York law permitted service on a foreign corporation through its authorized agent. 6 See
generally id.; see also Curry Mgmt. Corp. v. JPMorgan Chase Bank, N.A., 643 F. Supp. 3d 421,
426 (S.D.N.Y. 2022) (“A party may be deemed to concede an argument by failing to address it in
an opposition brief.”) (citation omitted).
Instead, Defendants assert that because the Summary indicates that it “concerned service
of process upon Coventry[,]” and not Enlyte, that invalidates Plaintiff’s service of process on
Enlyte. Dkt. No. 33 at 4. This assertion appears to be based on a heading of the Summary which
states that it is “FOR: Coventry[.]” Dkt. No. 30-5.
To the extent the Summary is relevant to analyzing the sufficiency of process at all,
6 Because Defendants did not remove this case until April 2025, the Court agrees with the parties
that New York law governs their disagreement regarding service in March 2025. See, e.g., Cont’l
Ins. Grp., Inc. v. Altunkilic, 633 F. App’x 61, 62 n.1 (2d Cir. 2016) (“In determining the validity of
service prior to removal to federal court, we apply the law of the state under which service was
made, which here is New York.”) (citations omitted).
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Defendants’ interpretation of the document is unpersuasive. Foremost, the Summary confirms that
Enlyte’s authorized agent received and transmitted service of process to at least one individual
with an Enlyte email address. 	Id. 	In contrast, none of the recipients have Coventry email
addresses. 	Id. 	Second, Defendants chose to omit—and do not address—the actual service of
process to which the Summary refers. Id. (“ENCLOSED ARE COPIES OF LEGAL PROCESS
RECEIVED BY THE STATUTORY AGENT[.]”). In any event, the Summary expressly disclaims
the accuracy of the “quick reference” information that it contains and on which Defendants rely.
Id. (“The information contained in this Transmittal is provided by CT for quick reference only. It
does not constitute a legal opinion, and should not otherwise be relied on, as to the nature of action,
the amount of damages, the answer date, or any other information contained in the included
documents. The recipient(s) of this form is responsible for reviewing and interpreting the included
documents and taking appropriate action, including consulting with its legal and other advisors as
necessary. CT disclaims all liability for the information contained in this form, including for any
omissions or inaccuracies that may be contained therein.”) (emphasis added). Thus, the Summary
does not support Defendants’ characterization that it “concerned service of process upon
Coventry.” Dkt. No. 33 at 4.
Regardless, Defendants have failed to establish that a single line on the Summary
invalidates Plaintiff’s service of process. Defendants offer no legal authority to support this hyper-
technical argument. See generally Dkt. No. 22-4 at 10-11; Dkt. No. 33 at 4. More importantly,
Defendants do not challenge Plaintiff’s affidavit of service, Dkt. No. 30-4, stating that service was
effected upon Enlyte, through its authorized agent in California on March 11, 2025. 7 	See, e.g.,
7 Defendants also do not challenge Plaintiff’s apparent failure to file this affidavit of service earlier.
See generally Dkt. No. 22-4 at 10-11; Dkt. No. 33 at 4; compare George v. Pro. Disposables Int’l,
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Tuccillo v. Tobin, No. 13-cv-04525, 2024 WL 5159437, at *4 (E.D.N.Y. Dec. 18, 2024) (“A process
server’s sworn statement of service creates a presumption that service has been effectuated.”)
(quoting De Curtis v. Ferrandina, 529 F. App’x 85, 86 (2d Cir. 2013)) (analyzing validity of service
under New York law). Defendants also submit no factual affidavit regarding service in connection
with their Motion, nor do they request a hearing concerning service. Compare Dkt. Nos. 22, 33,
with Tuccillo, 2024 WL 5159437, at *4 (“[N]o hearing is required where the defendant fails to
swear to specific facts to rebut the statements in the process server’s affidavits.’”) (quoting Old
Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 58 (2d Cir. 2002)).
As a result, the Court finds that Plaintiff has satisfied his burden of demonstrating sufficient
service on Enlyte, Khan, 360 F. App’x at 203, and denies Defendants’ request to dismiss pursuant
to Rule 12(b)(5). The Court proceeds to consider the merits of the claims against both Defendants.
2. 	Rule 12(b)(6)
Defendants argue that the Complaint fails to state claims for breach of contract against
Coventry or Enlyte because “[i]t is a jumble of conclusory statements lumping both Defendants
together, [and] fails to allege all the elements[.]” Dkt. No. 22-4 at 7.
“Under New York state law, a breach of contract claim must allege: ‘(i) the formation of a
contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform;
and (iv) damages.’” Orchard Hill Master Fund Ltd. v. SBA Commc’ns Corp., 830 F.3d 152, 156
(2d Cir. 2016) (quoting Orlander v. Staples, Inc., 802 F.3d 289, 294 (2d Cir. 2015)). Moreover,
courts have found that “New York law and the Twombly–Iqbal standards of federal pleading
require a complaint to identify, in non-conclusory fashion, the specific terms of the contract that a
Inc., 221 F. Supp. 3d 428, 444-45 (S.D.N.Y. 2016), with Samaan v. City of New York, No. 18-cv-
9221, 2020 WL 3073292, at *2-3 (S.D.N.Y. June 10, 2020).
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defendant has breached. Otherwise, the complaint must be dismissed.” Spencer-Smith v. Ehrlich,
No. 23-cv-02652, 2024 WL 709291, at *12 (S.D.N.Y. Feb. 21, 2024) (citation omitted) (collecting
cases); see also Diaz-Roa v. Hermes Law, P.C., 757 F. Supp. 3d 498, 560 (S.D.N.Y. 2024) (similar)
(collecting cases).
The Court agrees with Defendants that Plaintiff has not plausibly alleged a breach of
contract claim under New York state law. 8
With respect to the existence of a contract between the parties, Defendants argue that
Plaintiff has not alleged that Enlyte was a party to the Agreement. See Dkt. No. 22-4 at 15 (“Even
though only Coventry is a party to the Agreement, Plaintiff sues both Coventry and Enlyte for
breach of contract because ‘[t]he exact nature of the relationship between Coventry and Enlyte is
not presently known to the Plaintiff.’ . . . In short, instead of just suing Coventry, the party to the
Agreement, Plaintiff lumps in Enlyte to hedge his bets against either party being unable to satisfy
a judgment.”) (first alteration in original) (quoting Dkt. No. 2 at ¶ 5). Plaintiff acknowledges that
his allegations are against both entities merely to ensure recovery, and not because of the
Agreement. Dkt. No. 30-10 at 5 (“Because the exact relationship between Coventry and Enlyte
remains unclear, Plaintiff named both entities to ensure recovery[.]”); see also id. at 14. As a result,
the Court finds that Plaintiff’s allegations against Enlyte are insufficient to state a breach of
8 While the Agreement indicates that it is governed by Delaware law, Dkt. No. 2 at 16, § 10.10, the
Court applies New York state law in this diversity action “because the parties’ briefs both assume
New York state law governs and such ‘implied consent is . . . sufficient to establish the applicable
choice of law.’” 	Ezrasons, Inc. v. Travelers Indem. Co., 89 F.4th 388, 394 n.5 (2d Cir. 2023)
(alteration in original) (quoting Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 31 (2d Cir. 2017));
see also Dkt. No. 22-4 at 13 (citing Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. of
N.Y., 375 F.3d 168, 177 (2d Cir. 2004)); Dkt. No. 30-10 at 11 (same). The Court also notes that no
party has argued that the terms of the Agreement are ambiguous under New York state law.
Orchard Hill, 830 F.3d at 156 (“At the motion to dismiss stage, a district court may dismiss a
breach of contract claim only if the terms of the contract are unambiguous.”) (citation omitted).
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contract claim. See, e.g., Stapleton v. Barrett Crane Design & Eng’g, 725 F. App’x 28, 30 (2d Cir.
2018) (“In New York, ‘[l]iability for breach of contract does not lie absent proof of a contractual
relationship or privity between the parties.’”) (alteration in original) (quoting Hamlet at Willow
Creek Dev. Co. v. Ne. Land Dev. Corp., 878 N.Y.S.2d 97, 111 (App. Div. 2009)).
The contract on which Plaintiff sues states that it is between two parties: Coventry and
CompMed. 9 Dkt. No. 2 at 11; see also Kitchen Winners NY Inc. v. Rock Fintek LLC, 668 F. Supp.
3d 263, 284 (S.D.N.Y. 2023) (“In general, under New York law, a breach of contract action may
only be maintained against a party to the contract.”) (citations omitted). The Agreement does not
reference Enlyte, see generally Dkt. No. 2, and was signed only by Coventry and CompMed, id.
at 17. Kitchen Winners, 668 F. Supp. 3d at 284 (“And ‘a party who is not a signatory to a contract
generally cannot be held liable for breaches of that contract.’”) (citation omitted). Additionally,
the Complaint provides no non-conclusory allegations from which the Court can reasonably infer
any contractual relationship or privity between either Plaintiff and Enlyte, or Enlyte and Coventry.
See generally Dkt. No. 2. As for Plaintiff’s claim that Enlyte was acquired by a non-party entity
in August 2020, id. at ¶ 4, that claim does not plausibly allege that Enlyte was—or became—a
party to the Agreement which, according to Plaintiff, became effective in February 2013 and
9 Relatedly, Plaintiff alleges that it is “[a]s a result of [an] assignment” from CompMed that he
“possesses the right to seek recovery against the Defendants herein.” Dkt. No. 2 at ¶ 2. However,
the Agreement states that it prohibits assignment without Coventry’s prior written consent. Dkt.
No. 2 at 15, Art. 9; see also Brettler Tr. of Zupnick Fam. Tr. 2008 A v. Allianz Life Ins. Co. of N.
Am., 57 F.4th 57, 62-63 (2d Cir. 2022) (“The Appellate Division explained in Sullivan v.
International Fidelity Insurance Company that ‘[w]ith regard to the contractual provision
prohibiting assignment without . . . written consent,’ New York courts have ‘consistently held that
assignments made in contravention of a prohibition clause in a contract are void if the contract
contains clear, definite and appropriate language declaring the invalidity of such assignments.’”)
(alterations in original) (quoting 465 N.Y.S.2d 235, 237 (App. Div. 1983)). And Plaintiff does not
allege that CompMed’s assignment to him was effective under the terms of the Agreement. 	See
generally Dkt. No. 2.
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terminated well before August 2020, id. at ¶¶ 9, 35. 	Cf. In re JPMorgan Chase Cash Sweep
Program, No. 24-cv-6404, 2026 WL 396055, at * 4 (S.D.N.Y. Feb. 12, 2026) (“[A] parent
corporation may not be held liable for the contracts [and other acts] of its subsidiary solely because
of stock ownership.”) (alterations in original) (first quoting Maki v. Travelers Cos., Inc., 44
N.Y.S.3d 220, 223 (App. Div. 2016); and then citing Chanel, Inc. v. WGACA, LLC, No. 18-cv-
2253, 2018 WL 4440507, at *5 (S.D.N.Y. Sept. 14, 2018)). 	Thus, Plaintiff has not sufficiently
pled the existence of a contractual relationship, privity, or any other basis on which to assert a
breach of contract claim against Enlyte. See generally Stapleton, 725 F. App’x at 30-31; Kitchen
Winners, 668 F. Supp. 3d at 284-85.
Defendants also argue that Plaintiff “fails to allege facts to support the conclusory
statements that Plaintiff performed under the Agreement.” Dkt. No. 22-4 at 13; see also Dkt. No.
33 at 5. 	The Court again agrees. 	Plaintiff alleges that the Agreement contemplated providing
various services to “companies, including insurance carriers, self-insured employers, and other
entities (referred to in the Agreement as ‘Clients’)” in exchange for commission. Dkt. No. 2 at 3,
¶¶ 7-8. 	But the Agreement defines “Client” individually, and sets forth the corresponding
commission obligations for a Client in an individualized Schedule. See, e.g., id. at 11, § 1.1; id. at
13, § 6.2. The documentation Plaintiff attaches to the Complaint indicates that there was only one
such Client and Schedule under the Agreement, id. at 18 (“Schedule Number: 1”), and that no
further commission was owed once that Client relationship ended, 	id. at 13-14, § 6.4.4
(“Consultant may earn no further commission relating to a specific client as of . . . The date the
relationship between Consultant and such Client is terminated by Consultant or Client for any
reason.”). Plaintiff does not allege that CompMed performed services for NYSIF after November
2018, nor does he plausibly allege that any other unidentified entities for whom CompMed may
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have performed services after that date ever became a “Client” under the Agreement. See generally
Dkt. No. 2; id. at 13, § 6.2. Without any factual heft, the generalized allegations to which Plaintiff
points, Dkt. No. 30-10 at 12-13, do not plausibly allege that he performed services for a Client
under the Agreement, for which he was entitled to receive commission. 	In re JPMorgan, 2026
WL 396055, at *5 (“Under New York law, a plaintiff’s performance of its contract obligations is
essential to recover for a breach of that contract.”) (citations omitted).
Similarly unpersuasive is Plaintiff’s argument that “performance under the Agreement is
plausible in that the Defendants paid Plaintiff $174,639.32 representing the payment due for the
consulting services provided by the Plaintiff during the month of December 2018[.]” Dkt. No. 30-
10 at 13. The document which Plaintiff cites states that it is from a non-party (Aetna Inc.), does
not mention Defendants, is not addressed to Plaintiff, does not reference the Agreement, does not
indicate that it is payment of a commission under the Agreement, does not mention NYSIF (or any
other client), and is dated well after the date by which the Agreement contemplated the payment
of commission for services provided to a Client. Compare Dkt. No. 2 at 22, with id. at 13, §§ 6.2,
6.3. And the rest of the Complaint and Plaintiff’s submissions do not even mention this non-party
at all. See generally Dkt. Nos. 2, 30. As far as the Court can discern, this document appears to be
from an unrelated entity and for an unrelated contract. Regardless, Plaintiff’s incorporation of this
document in the Complaint does not plausibly allege that Plaintiff performed services for a Client
under the Agreement. 	In re JPMorgan, 2026 WL 396055, at *5. 	Moreover, because Plaintiff
identifies no other alleged payments, his argument that performance under the Agreement should
be inferred is unpersuasive. See generally Dkt. No. 2.
There are additional reasons that Plaintiff has not sufficiently alleged a breach of contract
claim against either Defendant. 	For example, Plaintiff’s first breach of contract claim fails to
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identify any specific provision of the Agreement that either Defendant breached. See Dkt. No. 2
at ¶¶ 21-30; see e.g., Spencer-Smith, 2024 WL 709291, at *12; Diaz-Roa, 757 F. Supp. 3d at 560.
Plaintiff’s second breach of contract claim does identify Section 7.1 of the Agreement, and argues
that Defendants breached this provision when they failed to provide him with thirty days to cure a
default. Id. at ¶¶ 31-36. But that claim is not plausibly alleged, given Plaintiff’s allegation that
the termination of the Agreement was pursuant to Section 6.4.4, id. at ¶ 10, which does not require
a cure period, compare id. at 13-14, §§ 6.4.4, 7.4, with id. at 14, § 7.1, as well as the face of the
termination notice, which does not reference any default, id. at 20. Moreover, Plaintiff does not
allege that he ever cured, or attempted to cure, any default. See generally Dkt. No. 2.
Because Plaintiff has not plausibly alleged a breach of contract claim, the Court grants
Defendants’ request to dismiss pursuant to Rule 12(b)(6). 10 Orchard Hill, 830 F.3d at 156.
B. Cross-Motion to Amend
“While, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, ‘leave to amend
shall be freely given when justice so requires, it is within the sound discretion of the district court
to grant or deny leave to amend . . . for good reason, including futility, bad faith, undue delay, or
undue prejudice to the opposing party.’” Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 447
(2d Cir. 2019) (alteration in original) (quoting Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018)).
“Moreover, a district court is under ‘no obligation’ to grant leave to amend when the plaintiff offers
merely ‘conclusory assertion[s]’ that amendment would cure a complaint’s deficiencies and ‘fail[s]
to disclose what additional allegations [he] would make which might lead to a different result.’”
Abe v. New York Univ., No. 14-cv-9323, 2016 WL 1275661, at *11 (S.D.N.Y. Mar. 30, 2016)
10 Defendants’ requests regarding discovery and mediation, see, e.g., Dkt. No. 22-4 at 16-20,
appear moot, see generally Docket Sheet, and are denied as such.
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(Sullivan, J.) (alterations in original) (first quoting Horoshko v. Citibank, N.A., 373 F.3d 248, 249
(2d Cir. 2004); and then citing Hayden v. Cnty. of Nassau, 180 F.3d 42, 53-54 (2d Cir. 1999)).
The entirety of the argument Plaintiff offers in support of his cross-motion to amend is that
“if the Court finds the Complaint deficient, the proper remedy is leave to amend” because “District
Courts routinely grant leave” in purportedly similar situations. Dkt. No. 30-10 at 14.
The Court finds that leave to amend is not appropriate here. 	Plaintiff’s cursory cross-
motion fails to suggest how he could successfully amend any of his now-dismissed claims, nor
does it include a proposed amended complaint. See, e.g., United States ex rel. Sisselman v. Zocdoc,
Inc., No. 22-cv-861, 2024 WL 4305667, at *12 (S.D.N.Y. Sept. 26, 2024) (“The Second Circuit
has consistently held that district courts may deny leave to amend when a plaintiff requests such
leave in a cursory sentence on the last page of an opposition to a motion to dismiss, without offering
any justification or attaching a proposed amended pleading.”) (quoting Cinema Vill. Cinemart, Inc.
v. Regal Ent. Grp., No. 15-cv-05488, 2016 WL 571970, at *7 (S.D.N.Y. Sept. 16, 2016), aff’d, 708
F. App’x 29 (2d Cir. 2017)); N.D.N.Y. L.R. 15.1(a) (“A party moving to amend a pleading pursuant
to Fed. R. Civ. P. 14, 15, 19-22 must attach an unsigned copy of the proposed amended pleading
to its motion papers.”).
As for the two cases that Plaintiff claims are analogous, neither is. In one, the district court
granted a pro se plaintiff leave to amend his Section 1983 claims. See Grune v. Hernandez, No.
22-cv-857, 2023 WL 6065944, at *1, 8 (N.D.N.Y. Sept. 18, 2022). In the other, the district court
found that a plaintiff’s proposed amended complaint sufficiently pled an Equal Pay Act violation,
and denied defendants’ corresponding motion to dismiss. See Fila v. State Univ. of N.Y., No. 21-
cv-1087, 2022 WL 4379502, at *2-3 (N.D.N.Y. Sept. 22, 2022). 	Plaintiff, in contrast, is not
proceeding pro se, is not asserting these claims, and has failed to provide a proposed amended
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complaint.
For these reasons, the Court denies Plaintiff’s cursory request for leave to amend. See, e.g.,
Zocdoc, 2024 WL 4305667, at *12.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motion to dismiss, Dkt. No. 22, is DENIED in part and
GRANTED in part, as set forth in Section IV of this Memorandum-Decision and Order; and the
Court further
ORDERS that Plaintiff’s complaint, Dkt. No. 2, is DISMISSED; and the Court further
ORDERS that Plaintiff’s cross-motion for leave to amend, Dkt. No. 30, is DENIED; and
the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
Parties in accordance with the Local Rules and close the case.
IT IS SO ORDERED.
Dated: March 16, 2026
Albany, New York
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