Upon the foregoing papers in this action by plaintiffs L & L Auto Distributors and Suppliers Inc. (L & L) and A1A Auto Leasing Inc. (A1A) (collectively, plaintiffs), against defendants The Auto Collection, Inc. (Auto Collection), Platinum Volkswagen LLC (Platinum), Steven Lever, Joshua Lever, and Brian Flynn (collectively, defendants ), Auto Collection, Platinum, Steven Lever, and Joshua Lever move for an order: (1) pursuant to CPLR 3211 (a) (7), dismissing plaintiffs' claim for an accounting and their second, third, fourth, fifth, and sixth causes of action, and (2) pursuant to CPLR 3024 (b),striking certain [*2]allegedly scandalous material contained within plaintiffs' complaint. Brian Flynn cross-moves for the same relief.^[FN1]

Auto Collection is a New York corporation licensed by the New York State Department of Motor Vehicles to operate an automobile dealership. Auto Collection is engaged in the retail sale of motor vehicles. Auto Collection's purported business is to identify high-end luxury motor vehicles for sale, as well as customers who wished to purchase these vehicles in order to export them to Russia and other eastern European countries. Auto Collection would then purportedly purchase these vehicles and sell them to these customers for a profit. Steven Lever and Joshua Lever are both owners and principals of Auto Collection. Brian Flynn is the future brother-in-law of Joshua Lever and a salesperson for Auto Collection.

L & L is an import-export company in the business of buying automobiles and reselling them for export to purchasers in the former Soviet Union. The president and sole owner of L & L is Boris Kotlyarsky. Between January 18, 2008 and March 19, 2008, pursuant to purchase orders, L & L purchased a total of 21 automobiles from Auto Collection. L & L paid for these automobiles in advance either by check or bank wire transfer to Auto Collection, and paid a total amount of $605,477 to Auto Collection for these automobiles. L & L has identified the specific automobile model and vehicle identification number (VIN) for each of these automobiles as well as the purchase price it paid and the date on which it purchased each of them.

A1A is similarly an import-export company in the business of buying automobiles and reselling them for export to purchasers in the former Soviet Union. The president and sole owner of A1A is Nikolay Bergunker. Between March 12, 2008 and April 9, 2008, pursuant to purchase orders, A1A purchased five automobiles from Auto Collection. A1A also pre-paid in full the total sum of $376,815 for these five automobiles. A1A has identified the automobile models, the purchase prices, and the dates of the purchases by it of all of these five automobiles.

Plaintiffs assert that following their purchases of these cars, they repeatedly demanded that defendants either deliver the cars to them or refund to them the full purchase prices for these cars. Defendants, however, neither delivered the cars to plaintiffs nor refunded the purchase prices for these undelivered cars to them. Defendants also could not account for the whereabouts of these cars in any way.

Christopher Pinkow was a salesperson for Auto Collection and was involved in assisting and coordinating Auto Collection's delivery of vehicles, including handling paperwork, such as transportation documents and vehicle condition reports. Plaintiffs assert that beginning in February to March 2008, Christopher Pinkow discovered from transportation documents and vehicle condition reports supplied by auto transporters to Auto Collection that Auto Collection was accepting funds from multiple buyers for vehicles with a single VIN. That is, Auto Collection was allegedly selling the same single car to multiple buyers and getting paid for that single car multiple times. Plaintiffs further assert that there were also occasions when Auto Collection accepted payments from multiple buyers for one single car and then delivered it to none of these buyers, but, instead, retained the car for its own purposes. [*3]

On April 18, 2008, Boris Kotlyarsky and Nikolay Bergunker met with Steven Lever and Joshua Lever at the offices of Auto Collection, demanding the delivery of the cars which they had purchased. During that meeting, Steven Lever and Joshua Lever allegedly confirmed that they had received the payments totaling $982,292 for these cars and that the cars had not been delivered. Steven Lever allegedly requested two or three days to get back to plaintiffs and allegedly asserted that Christopher Pinkow, who had actually already resigned from Auto Collection on April 16, 2008, "was handling all these transactions."

Plaintiffs allege that defendants never got back to them as they had promised during the April 18, 2008 meeting. Plaintiffs assert that none of these automobiles were ever delivered by defendants to them nor did defendants return the monies paid them. Plaintiffs allege that many of these cars purchased by them have been retained by defendants.

Plaintiffs further allege that by March or April of 2008, after they and other customers had begun to complain that Auto Collection had taken their money and not delivered the automobiles, Steven Lever and Joshua Lever, instead of responding to these complaints, purchased Platinum for over $900,000. Platinum is also licensed as an automobile dealership with the New York State Department of Motor Vehicles under the identical license number as Auto Collection. Plaintiffs claim that defendants then made significant transfer of funds (including the monies paid by them) and transferred much of the volume of Auto Collection's business to Platinum. Plaintiffs additionally allege that portions of the funds paid by them to defendants for the vehicles have been wired to Brian Flynn and placed in a bank account opened for him by Joshua Lever at the First National Bank of Long Island.

On June 27, 2008, plaintiffs filed this action against defendants, alleging causes of action for breach of contract, restitution of damages, turnover, conversion, and a demand for receivership. While plaintiffs' complaint alleged, in paragraph 1 thereof, that it was a complaint for fraud, as well as for breach of contract and conversion, no separate fraud cause of action was actually contained therein.

There are four other similar presently pending actions against Auto Collection in the Supreme Court, Kings County (see Boomerang Auto, Inc. v The Auto Collection, Inc., Sup Ct, Kings County, index No. 22436/08 [which similarly names Platinum, Steven Lever, Joshua Lever, and Brian Flynn, in addition to Auto Collection, as defendants] [the Boomerang action]; Royal Auto Collection, Inc. v Auto Collection, Inc., Sup Ct, Kings County, index No. 21533/08 [which names Steven Lever, in addition to Auto Collection, as a defendant] [the Royal action]; Azte, Inc. v The Auto Collection, Inc., Sup Ct, Kings County, index No. 19999/08 [which names Steven Lever, Joshua Lever, and Christopher Pinkow,^[FN2] in addition to Auto Collection, as defendants]; FT & T Consulting, Inc. v The Auto Collection, Inc., Sup Ct, Kings County, index No. 28329/08 [which similarly names Platinum, Steven Lever, Joshua Lever, and Brian Flynn, in addition to Auto Collection, as defendants]).^[FN3] In addition, two similar actions have been commenced against Auto Collection in the Supreme Court, Richmond County (Oleksandr Butenko v The Auto Collection, Inc., Sup Ct, Richmond County, index No.102451/08 [which names Christopher Pinkow, in addition to Auto Collection, as defendants]; USA Autoland & Lov Motors, Inc. v The Auto Collection, Sup Ct, Richmond County, index No. 04533/08 [which names [*4]Platinum, Steven Lever, Joshua Lever, Brian Flynn, and two others, in addition to Auto Collection, as defendants]).

All of these seven actions share common fact patterns and claims. Specifically, all of these seven actions allege that a luxury vehicle or several luxury motor vehicles were purchased from Auto Collection by an import-export company in the business of buying motor vehicles and reselling them for export to Russia or an eastern European country, that Auto Collection demanded pre-payment of the full purchase price, and that the purchaser pre-paid the full purchase price, but the motor vehicle or vehicles were never delivered to it, nor was the purchase price refunded to it. All of these seven actions similarly allege claims for breach of contract, fraud,^[FN4] and various other claims.

On October 6, 2008, Auto Collection, Platinum, Steven Lever, and Joshua Lever moved, pursuant to CPLR 3211 (a) (7), to dismiss plaintiffs' complaint (except for their breach of contract cause of action), and, on October 14, 2008, Brian Flynn cross-moved for the same relief. That motion and cross motion were joined, for purposes of oral argument, with a similar motion by Auto Collection, Platinum, Steven Lever, and Joshua Lever and a similar cross motion by Brian Flynn in the Boomerang action, and a similar motion by Auto Collection and Steven Lever in the Royal action. By order dated October 15, 2008, after hearing oral argument, the court denied defendants' motion to dismiss plaintiffs' various causes of action, pending discovery, and directed defendants to serve and file their answers within 30 days. By the October 15, 2008 order, the court decided and rejected Brian Flynn's cross motion due to its lack of service and his failure to appear. The court rendered similar orders in the Boomerang action and the Royal action.

Following the denial of defendants' motion to dismiss, plaintiffs filed and served a first amended complaint dated October 20, 2008.^[FN5] Plaintiffs' first amended complaint retains [*5]the causes of action asserted in their original complaint, which consisted of a first cause of action for breach of contract, a second cause of action for restitution of damages, a third cause of action for turnover (which is now their fourth cause of action in their first amended complaint), a fourth cause of action for conversion, and a fifth cause of action for receivership. In addition, plaintiffs' first amended complaint, by its amendment, now alleges a third cause of action for fraud. Auto Collection, Platinum, Steven Lever, and Joshua Lever, in their motion, and Brian Flynn, in his cross motion, do not seek dismissal of plaintiffs' first cause of action for breach of contract, but seek dismissal of all of plaintiffs' other claims, including their newly asserted third cause of action for fraud.

Plaintiffs, in opposing Auto Collection, Platinum, Steven Lever, and Joshua Lever's motion, and Brian Flynn's cross motion, assert that the court has already sustained the viability of all of their causes of action (except for their newly asserted fraud claim) by denying Auto Collection, Platinum, Steven Lever, and Joshua Lever's earlier motion to dismiss. However, due to the amendment of plaintiffs' complaint (which now supersedes and replaces the original complaint), the court may again reconsider the viability of these causes of action, as set forth in plaintiffs' first amended complaint (see Sevenson Hotel Assoc. v Stranges, 262 AD2d 957, 958 [1999]; Shelley v Shelley, 180 Misc 2d 275, 282 [1999]).

In addressing Auto Collection, Platinum, Steven Lever, and Joshua Lever's motion and Brian Flynn's cross motion, it is noted that, in the context of a motion to dismiss pursuant to CPLR 3211, a court must "liberally construe the complaint . . . and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion" (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87 [1994]). The court must also "accord [the] plaintiff[ ] the benefit of every possible favorable inference" (511 W. 232nd Owners Corp., 98 NY2d at 152). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (511 W. 232nd Owners Corp., 98 NY2d at 152, quoting Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]). On the other hand, if the facts, as alleged in a cause of action, do not fit a cognizable legal theory or are duplicative of another cause of action already asserted in the complaint, that cause of action cannot be maintained (see generally Oszustowicz v Admiral Ins. Brokerage Corp., 49 AD3d 515, 516 [2008]).

Auto Collection, Platinum, Steven Lever, and Joshua Lever, in their motion, and Brian Flynn, in his cross motion, seek to dismiss plaintiffs' request (in paragraph 94 of their first amended complaint and paragraph D of their "wherefore" clause) for an accounting. Plaintiffs claim that they are entitled to an accounting in order to determine what has [*6]happened to the monies they paid and the whereabouts of the vehicles which they purchased. However, "[t]he right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest" (Palazzo v Palazzo, 121 AD2d 261, 264 [1986]; see also Adam v Cutner & Rathkopf, 238 AD2d 234, 242 [1987]). Here, there was only an arm's length business relationship between plaintiffs and defendants. Thus, inasmuch as no fiduciary relationship existed between plaintiffs and defendants, plaintiffs are not entitled to an accounting (see Sergeants Benevolent Assn. Annuity Fund v Renck, 19 AD3d 107, 111 [2005]).

Auto Collection, Platinum, Steven Lever, and Joshua Lever's motion and Brian Flynn's cross motion also request dismissal of plaintiffs' second cause of action for restitution of damages. In this second cause of action, plaintiffs seek the restitution of damages proximately caused to them by defendants' allegedly illegal conduct. Defendants argue that plaintiffs cannot maintain their second cause of action for restitution. Defendants point out that restitution is an equitable remedy for a plaintiff who establishes unjust enrichment, and they rely upon the well established legal principle that the existence of a valid and express enforceable written agreement precludes recovery for unjust enrichment (see State of New York v SCA Servs., Inc., 761 F Supp 14, 15 [SD NY 1991]; Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593 [2007]; Spallina v Giannoccaro, 98 AD2d 103, 105 [1983]).

In this regard, it is noted that a cause of action for restitution does not arise from the breach of a written contract, but, rather, from a quasi-contract or a contract implied in law that prevents a person from enriching himself or herself unjustly at the expense of another (see Tower Intl., Inc. v Caledonian Airways, Ltd., 969 F Supp 135, 137 [ED NY 1997], affd 133 F3d 908 [2d Cir 1998]). The elements of a restitution claim in quasi-contract are that the defendant has received a benefit or was enriched at the plaintiff's expense under circumstances that would make it unjust and against equity and good conscience for the defendant to retain what is sought to be recovered (see Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 473, 481 [2009];see also Old Republic Natl. Title Ins. Co. v Luft, 52 AD3d 481, 491-492 [2008]; Whitman Realty Group, Inc.,41 AD3d at 592-593;Cruz v McAneney, 31 AD3d 54, 59 [2006]).

Here, plaintiffs allege these requisite elements of unjust enrichment, but they also allege a separate breach of contract claim. However, a claim of unjust enrichment may be pleaded in the alternative to a contract claim where there is a dispute as to whether a valid contract exists (see Goldman v Simon Prop. Group, Inc., 58 AD3d 208, 220 [2008]; Hochman v LaRea, 14 AD3d 653, 654-655 [2005]; Zuccarini v Ziff-Davis Media, 306 AD3d 404, 405 [2003]; Old Salem Dev. Group v Town of Fishkill, 301 AD2d 639, 639 [2003]). Thus, where a plaintiff claims that a contract is invalid because it was procured by fraud, the plaintiff may concurrently assert a breach of contract claim and an unjust enrichment claim (see Gordon v Oster, 36 AD3d 525, 525 [2007]).

In the case at bar (as discussed below), plaintiffs' third cause of action alleges a claim of fraud. Thus, if the contract must be rescinded due to fraud in the inducement, plaintiffs would be entitled to restitution of their damages. Therefore, inasmuch as plaintiffs (while maintaining their breach of contract claim) are simultaneously alternatively alleging that the contract is invalid because it was procured by fraud, such claim is viable. Consequently, dismissal of plaintiffs' second cause of action for restitution of damages must be denied (see id.).

With respect to plaintiffs' third cause of action for fraud, it is noted that the essential elements required to adequately plead a cause of action for fraudulent inducement are: that [*7]the defendant made a false representation of a material fact, that the defendant made such misrepresentation knowingly (i.e., with scienter), that the misrepresentation made was justifiably relied upon by the plaintiff, and that some injury or damage resulted to the plaintiff (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112, 122 [1995]; Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 407 [1958]; Gordon v Oster, 36 AD3d 525, 525 [2007]; CFJ Assoc. of NY v Hanson Indus., 274 AD2d 892, 894 [2000]; National Union Fire Ins. Co. of Pittsburgh, Pa. v Worley, 257 AD2d 228, 233 [1999]).

Plaintiffs' third cause of action for fraud alleges that defendants made false representations of material facts by offering them cars with specific VINs despite knowing, at the time they made this offer, that they had already sold and conveyed the identical cars to other parties. Plaintiffs allege that by doing so, defendants knowingly and deliberately deceived them. Plaintiffs further allege that they justifiably relied upon defendants' misrepresentations by entering into the contract and paying in advance and in full for the purchase of the vehicles. Plaintiffs also allege that they sustained damages due to the loss of the $982,292 they paid for the vehicles. Thus, plaintiffs adequately allege each of the requisite elements to set forth a claim for fraud in the inducement (see Niagara Mohawk Power Corp. v Freed, 265 AD2d 938, 939 [1999]).

In addition, it is noted that the assertions by plaintiffs in this action are similar to those in the six related actions (as discussed above), which allege that defendants engaged in a fraudulent scheme, which was part of a pattern of deliberate fraud perpetrated against multiple purchasers. Under this alleged fraudulent scheme, defendants would seek out and solicit purchasers who were in the business of purchasing luxury vehicles for resale and export to Russia. Defendants would then send out an invoice for the same vehicle with the identical VIN to multiple purchasers, and would demand payment in advance and in full from each purchaser for the same vehicle. However, defendants would allegedly either deliver the vehicle to only one customer, not deliver the vehicle to any of the customers, or keep the vehicle in their possession, while at the same time, retaining all of the pre-payments made to them by all of the purchasers, and causing the purchasers to breach the contracts that they had in place with third-party purchasers in Russia. Defendants would, thus, allegedly profit by charging a number of different customers for the same vehicles, while not delivering the vehicles and retaining the pre-payments.

Defendants, in support of their motion and cross motion insofar as they seek dismissal of plaintiffs' third cause of action for fraudulent inducement, rely upon the general legal principle that a cause of action seeking damages for fraud cannot be sustained when the only fraud charged relates to a breach of contract or where the fraud claim is duplicative of abreach of contract claim (see Sellinger Enters., Inc. v Cassuto, 50 AD3d 766, 768 [2008]; Ross v DeLorenzo, 28 AD3d 631, 636 [2006]; Lee v Matarrese, 17 AD3d 539, 540 [2005]; Egan v New York Care Plus Ins. Co., 227 AD2d 652, 653 [2000]; Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, 118 [1998]; Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643, 644 [1997]; Weitz v Smith, 231 AD2d 518, 519 [1996]; Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1988]). Defendants argue that plaintiffs' third cause of action for fraud is merely duplicative of their breach of contract claim, and impermissibly attempts to convert their breach of contract claim into a tort claim alleging fraud. Defendants point out that in order to plead fraud, a plaintiff must allege "[a] present intent to deceive," and that "a mere misrepresentation of an intention to perform under the contract is insufficient to allege fraud" (WIT Holding Corp. v Klein, 282 AD2d 527, 528 [2001]). [*8]

Defendants' argument is unavailing. It is well established that "a misrepresentation of material fact, which is collateral to the contract and serves as an inducement for the contract, is sufficient to sustain a cause of action alleging fraud" (id.; see also Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956 [1986]; Sellinger Enters., Inc., 50 AD3d at 768; First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 291-292 [1999]). Thus, a fraud claim may be based upon allegations that the defendant fraudulently induced the plaintiff to enter into a contract, and a party who is fraudulently induced to enter into a contract may join a cause of action for fraud with one for breach of the same contract where the misrepresentations alleged consist of more than mere promissory statements about what is to be done in the future (see Deerfield Communications Corp., 68 NY2d at 956; Sellinger Enters., Inc., 50 AD3d at 768; First Bank of Ams., 257 AD2d at 291-292).

"[W]here the plaintiff pleads that it was induced to enter into a contract based on the defendant's promise to perform and that the defendant, at the time it made the promise, had a preconceived and undisclosed intention of not performing' the contract, such a promise constitutes a representation of present fact collateral to the terms of the contract and is actionable in fraud" (Manas v VMS Assoc., LLC, 53 AD3d 451, 453 [2008], quoting Deerfield Communications Corp., 68 NY2d at 986; see also Zuccarini, 306 AD2d at 405; Batas v Prudential Ins. Co. of Am., 281 AD2d 260, 261 [2001]). Thus, where a plaintiff alleges misrepresentations of present facts, rather than merely of future intent, that were collateral to the contract and which induced the allegedly defrauded party to enter into the contract, a fraudulent inducement claim is not duplicative of a breach of contract claim (see Sellinger Enters., Inc., 50 AD3d at 768; WIT Holding Corp., 282 AD2d at 528; First Bank of Ams., 257 AD2d at 291-292). The same set of circumstances giving rise to a breach of contract claim may also form the basis of a cause of action for fraud and, thus, a fraud claim which is not duplicative of a contract claim may be maintained (see Deerfield Communications Corp., 68 NY2d at 956; Sellinger Enters., Inc., 50 AD3d at 768; Fresh Direct v Blue Martini Software, 7 AD3d 487, 489 [2004]; WIT Holding Corp., 282 AD2d at 528; First Bank of Ams., 257 AD2d at 291-292; RKB Enters. v Ernst & Young, 182 AD2d 971, 972 [1992]; Tarrytown House Condominiums v Hainje, 161 AD2d 310, 312 [1990]).

Here, plaintiffs do not merely allege that defendants did not intend to perform or fulfill their obligations under the contracts (compare Wilmoth v Sandor, 259 AD2d 252, 255 [1999]; Bamira v Greenberg, 256 AD2d 237, 239 [1998]). Rather, plaintiffs allege that fraudulent misrepresentationswere made by defendants prior to, and as an inducement for them to enter into the contracts. Plaintiffs' fraudulent inducement claim is not premised upon the alleged breach of a duty arising under the contracts, but, instead, is based upon representations that are extraneous to the terms of the parties' contracts (see Sellinger Enters., Inc., 50 AD3d at 768; Fresh Direct, 7 AD3d at 489; WIT Holding Corp., 282 AD2d at 528; First Bank of Ams., 257 AD2d at 291-292). The fraud allegedly perpetrated by defendants occurred prior to the parties' entry into the contracts, and arose from circumstances separate and distinct from plaintiffs' breach of contract claim (see Deerfield Communications Corp., 68 NY2d at 956; Sellinger Enters., Inc., 50 AD3d at 768; WIT Holding Corp., 282 AD2d at 528; First Bank of Ams., 257 AD2d at 291-292). Specifically, plaintiffs' allegations of fraud are premised upon these defendants' alleged duplicity in misrepresenting, as part of a fraudulent scheme, that they would sell them vehicles which they could not sell them or which they, at that time, intended not to sell them, because they had already sold these identical vehicles or already planned to sell these same vehicles to someone else. [*9]

Plaintiffs' allegations, thus, smack of fraud specifically directed at particular consumers of luxury vehicles for export, and are supported by the almost identical allegations of fraud brought by the plaintiffs in the six other related actions. Consequently, contrary to defendants'argument, the contracts do not limit the scope of the duties owed to plaintiffs, but, instead, plaintiffs' fraud claim is based upon a separate and distinct legal duty independent of the contracts. Therefore, plaintiffs' third cause of action for fraud is definitely viable.

Defendants also argue that plaintiffs have failed to plead their fraud claim with the requisite particularity pursuant to CPLR 3016 (b). This argument is rejected. CPLR 3016 (b) "requires only that the misconduct complained of be set forth in sufficient detail to clearly inform a defendant with respect to the incidents complained of" (Lanzi v Brooks, 43 NY2d 778, 780 [1977]).

As discussed above, plaintiffs have pleaded the circumstances constituting the wrong in sufficient detail to satisfy the pleading requirement of CPLR 3016 (b) (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]; Kaufman v Kaufman, 135 AD2d 786, 787 [1987]). Thus, dismissal of plaintiffs' third cause of action for fraud must be denied.

Defendants, in seeking dismissal of plaintiffs' fourth cause for "turnover," claim that they are not in possession of the subject automobiles. In addition, defendants point out that a "turnover" is generally a CPLR article 52 mechanism for enforcing a judgment by a judgment creditor (see CPLR 5255; JPMorgan Chase Bank, N.A. v Motorola, Inc., 47 AD3d 293, 301 [2007]). No judgment has been obtained by plaintiffs herein (see Estate of Giustino v Estate of DelPizzo, 21 AD3d 523, 523 [2005]).

Plaintiffs' fourth cause of action for a "turnover," however, actually seeks an order requiring defendants to account for and deliver the particular cars that they paid for, or, in the alternative, that any transfer of the cars be declared invalid and fraudulent and that title and ownership of the cars be turned over to them as the rightful owners. In support of this claim, plaintiffs allege that the majority of the cars are high-end luxury brand cars, such as Mercedes Benz and Lexus. Plaintiffs further allege that such luxury cars are in high demand and short supply, and that they are very difficult to purchase, especially for export. Plaintiffs state that for many of these cars, the waiting lists to obtain new cars are unacceptably long, and can be three months or longer. Plaintiffs claim that this long replacement period to obtain new cars, as opposed to the specific cars which they already bought and paid for, will cripple and possibly destroy their businesses.

The motor vehicles at issue, however, are new cars and not unique, antique, or one-of-a-kind vehicles. Plaintiffs are not entitled to specific performance of the sale of this vehicle; rather, it can be fully compensated by way of monetary damages (see Sokoloff, 96 NY2d at 429; Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 193-194 [1986]). Thus, dismissal of plaintiffs' fourth cause of action for a "turnover" is warranted (see CPLR 3211 [a] [7]).

Plaintiffs' fifth ^[FN6] cause of action for conversion alleges that defendants converted $982,292 of their funds. Plaintiffs assert that defendants converted the vehicles, which they purchased, by exercising an unauthorized dominion and control over them in defiance of their superior right to possession of them. [*10]

"A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Colavito v New York Organ Donor Network, Inc., 8 NY2d 43, 49-50 [2006]). " [T]o establish a cause of action in conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff's rights'" (Estate of Giustino, 21 AD3d at 523, quoting Independent Discount Corp. v Bressner, 47 AD2d 756, 757 [1975]; see also Zendler Constr. Co., Inc. v First Adj. Group, Inc., 59 AD3d 439, 440 [2009]). Tangible personal property or a specific sum of money must be involved (see Independence Discount Corp., 47 AD2d at 757).

However, "[a] claim of conversion cannot be predicated on a mere breach of contract," and, here, there are no independent facts alleged of a separate taking (apart from the alleged breach of contract), which could give rise to tort liability (Kopel v Bandwidth Tech. Corp., 56 AD3d 320, 320 [2008]; see also Tornheim v Blue & White Food Prods. Corp., 56 AD3d 761, 761 [2008]; Hochman, 14 AD3d at 655; Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268, 269 [2003]; Hassett Belfer Senior Hous. v Town of N. Hempstead, 270 AD3d 306, 307 [2000]; Wolf v National Council of Young Israel, 264 AD2d 416, 417 [1999]; Priolo Communications v MCI Telecom. Corp., 248 AD2d 453, 454 [1998]; MBL Life Assur. Corp. v 555 Realty Co., 240 AD2d 375, 376 [1997]). Thus, inasmuch as plaintiffs' fifth cause of action for conversion is nothing more than a restatement of their breach of contract claim, its dismissal is mandated (see CPLR 3211 [a] [7]; Tornheim, 56 AD3d at 761; Interstate Adjusters v First Fid. Bank, N.J., 251 AD2d 232, 234 [1998]; MBL Life Assur. Corp., 240 AD2d at 376; Yeterian v Heather Mills N. V. Inc., 183 AD2d 493, 494 [1992]).

Plaintiffs' sixth ^[FN7] cause of action seeks the appointment of a receiver pursuant to CPLR 5228 and 6401, or an attachment pursuant to CPLR 6201 (3). CPLR 5228, however, is applicable only to a motion by a judgment creditor as an aid in post-judgment enforcement. Plaintiffs are not judgment creditors of defendants and, thus, this section is inappropriately cited by them. The appointment of a receiver, pursuant to CPLR 6401, is a provisional remedy, which may be sought upon motion, and "is not an ultimate form of relief that can be awarded in a plenary action" (Old Republic Nat. Title Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678, 681 [2005]).

Furthermore, " [t]he appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits'" (Vandaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632 [2008], quoting Schachner v Sikowitz, 94 AD2d 709, 709 [1983]). Therefore, even where there is a motion seeking such appointment, it will only be granted where the moving party has made a clear evidentiary showing that property is in danger of being "removed from the state, or lost, materially injured or destroyed" (CPLR 6401 [a]; see Lee v 183 Port Richmond Ave. Realty, 303 AD2d 379, 380 [2003]). There is no clear evidentiary showing of this in this case; Auto Collection claims that it remains a solvent, viable New York corporation, and Platinum (to which plaintiffs claim Auto Collection transferred funds) is named as a [*11]defendant herein. Thus, plaintiffs' sixth cause of action insofar as it seeks a receivership states no legally cognizable claim.

Insofar as plaintiffs, in their sixth cause of action, seek an attachment pursuant to CPLR 6201, it is noted that an order of attachment is a provisional remedy (not a cause of action for ultimate relief), which must be obtained by way of a motion, wherein the plaintiff must show, by affidavit and other written evidence, among other things, that it satisfies the grounds for an attachment (see CPLR 6212 [a]). CPLR 6201 (3) requires that a party seeking an order of attachment establish that: (1) the defendant has assigned, disposed of, encumbered or secreted property or removed it from the state or that the defendant is about to engage in one of these activities; and (2) such action was taken with the intent to defraud creditors or to frustrate the enforcement of a judgment that plaintiff might obtain (see Corsi v Vroman, 37 AD3d 397, 397 [2007]; Benedict v Browne, 289 AD2d 433, 433 [2001]; Societe Generale Alsacienne De Banque, Zurich v Flemingdon Dev. Corp., 118 AD2d 769, 772 [1986]).

Here, while plaintiffs have made allegations regarding Auto Collision's transfer of funds to Platinum, Platinum (as previously noted) is also named as a defendant herein. There is no evidentiary showing of any danger that defendants will remove or secrete their assets in such a way as to render a future judgment unenforceable. Plaintiffs cannot use this attachment provision simply to create a fund from which to obtain the enforcement of a judgment should it ultimately prevail in this action.

Thus, plaintiffs' sixth cause of action does not state a legally viable claim for a receivership or an attachment. Dismissal of plaintiffs' sixth cause of action is, therefore, required (see CPLR 3211 [a] [7]).

Auto Collection, Platinum, Steven Lever, and Joshua Lever's motion and Brian Flynn's cross motion also seek an order, pursuant to CPLR 3024 (b), striking out certain material contained in plaintiffs' complaint which, they claim, is scandalous. CPLR 3024 (b) provides that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading."

Defendants point to paragraph 35 of plaintiffs' first amended complaint, which alleges that:

"Defendants were also involved in other manipulative and

deceptive business practices. Some of these involve Brian

Flynn, . . . future brother-in-law of Joshua Lever, and

[d]efendants' employee. Defendants rented an apartment

for [Brian] Flynn in Concord, New Hampshire. [Brian] Flynn

does not really reside in New Hampshire, but New Hampshire

is a jurisdiction with minimal state fees and taxes."

Defendants also take issue with paragraph 47 of plaintiffs' first amended complaint, which asserts that defendants were involved in "a deliberate pattern of widespread fraud and deceit of both customers and regulatory authorities alike."

Defendants contend that the references to their purported efforts to minimize sales tax obligations and to mislead "regulatory authorities" adds nothing of substance to the complaint and were unnecessarily inserted in the complaint in an effort to place scandalous material before the court. Defendants argue that even if these allegations are true, they do not advance plaintiffs' claims. Defendants also state that plaintiffs lack standing to pursue such matters, and that such matters can only be pursued by regulatory [*12]authorities on an administrative basis. They contend that, therefore, the court should strike these allegations as scandalous pursuant to CPLR 3024 (b).

In reviewing a motion, pursuant to CPLR 3024 (b), to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading, "the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action" (Soumayah v Minnelli, 41 AD3d 390, 392 [2007]; see also New York City Health & Hosps. Corp. v St. Barnabas Community Health Plan, 22 AD3d 391, 391 [2005]; Rice v St. Luke's-Roosevelt Hosp. Ctr., 293 AD2d 258, 259 [2000]; Bristol Harbour Assoc. v Home Ins. Co., 244 AD2d 885, 886 [1997]; Wegman v Dairylea Coop., 50 AD2d 108, 111 [1975]). Where allegations in a pleading are relevant to the plaintiff's cause of action, they will not be stricken (see New York City Health & Hosps. Corp., 22 AD3d at 391; Rice, 293 AD2d at 259; Bristol Harbour Assoc., 244 AD2d at 886).

In this case, contrary to defendants' argument, the aforementioned allegations are not "unnecessarily inserted" in plaintiffs' complaint. With respect to Brian Flynn, it is also alleged that over $2,000,000 have been wired to Brian Flynn by defendants, and that he is involved in the alleged complained of fraudulent conduct. Thus, the allegations in paragraph 35 with respect to Brian Flynn are relevant to his alleged complicity in the claimed fraudulent scheme. As to paragraph 47, defendants' alleged deceit of regulatory authorities relates to the fact that Platinum and Auto Collection used the same license number and to the alleged illegal conduct by defendants in selling the same vehicle to multiple purchasers.

Thus, the above allegations are relevant since they directly bear upon the fraud claims alleged by plaintiffs and the controversy before this court. The court, therefore, will not strike them (see New York City Health & Hosps. Corp., 22 AD3d at 391; Rice, 293 AD2d at 259; Bristol Harbour Assoc., 244 AD2d at 886).

Accordingly, Auto Collection, Platinum, Steven Lever, and Joshua Lever's motion and Brian Flynn's cross motion are granted to the extent that they seek dismissal of plaintiffs' claim for an accounting, and their fouth cause of action for turnover, fifth cause of action for conversion, and sixth cause of action for the appointment of a receiver or an attachment. Auto Collection, Platinum, Steven Lever, and Joshua Lever's motion and Brian Flynn's cross motion are denied insofar as they seek dismissal of plaintiffs' second cause of action for restitution of damages and third cause of action for fraud, and insofar as they seek an order, pursuant to CPLR 3024(b), striking certain allegedly scandalous material contained within plaintiffs' complaint. Defendants shall serve and file their answers and respond to plaintiffs' notice to admit within 30 days of the date hereof. All parties are directed to appear for conference before the court in the Commercial Division 1 on July 8, 2009 at 9:30 A.M.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.