This commercial action is brought by the State of New York Workers' Compensation Board ("WCB") as successor in interest to The Builders' Self-Insurance Trust ("Trust"). Five separate motions to dismiss the complaint have been filed.

BACKGROUND

According to the WCB's complaint ("Complaint"), the Trust is a group self-insured trust ("GSIT") formed pursuant to Workers' Compensation Law § 50-a. Members of the Trust were employers within the construction industry in New York State that were required to provide workers' compensation insurance to employees. Due to a substantial accumulated deficit and the inability of the Trust to properly manage its deficit, the WCB assumed administration of the Trust on May 1, 2009. As such, the WCB sues as the successor in interest to the Trust. After assuming administration of the Trust, the WCB commissioned a forensic accounting that detailed administration of the Trust from inception to termination and provided a systematic review and evaluation of the circumstances leading to the substantial accumulated deficit, estimated at approximately $20 million as of the November 30, 2012 commencement of this action.

The Complaint alleges that defendant Marsh U.S.A., Inc. ("Marsh") served as group administer to the Trust. Defendants Joseph McIvor, Richard Bergman, Howard Zubin, Joseph Guida, Barrett Greene and Philip Larocque allegedly served as trustees of the Trust. The WCB alleges that breaches of contract and fraud by the former trustees ( "Trustees") and breaches of [*2]contract by Marsh contributed to the Trust's deficit and underfunded status, and it seeks to recover this deficit from defendants by this action. Additionally, the WCB seeks to recoup certain service fees paid by the Trust to Marsh.

On June 15, 1998, Trustees McIvor, Bergman and Zubin ("Founding Trustees") executed three documents in connection with the establishment of the Trust: The BUILDERS' Agreement and Declaration of Trust for the New York State Builders' Self-Insurance Trust Fund ("Trust Agreement"); the Rules and Regulations of the New York State Builders' Self-Insurance Trust Fund ("Rules & Regulations"); and the New York State Builders' Self-Insurance Trust Fund Indemnity Agreement ("Indemnity Agreement"). The Trust Agreement prescribed the powers and duties of the Trustees in relation to the governance and management of the Trust. Among other things, the Trust Agreement obliged the Trustees to act in accordance with the Trust Agreement and the Rules & Regulations. Also on June 15, 1998, the Founding Trustees contracted with FCS to administer the Trust.

At the time the Trust was established, the Founding Trustees allegedly were associated with the Niagara Frontier Builders Association ("NFBA"). According to the Complaint, NFBA's building was pledged as security for a $750,000 letter of credit that the Trust secured in order to comply with the Workers' Compensation Law and attendant regulations.

The Trust Agreement was amended several times between 2000 and 2002 to, among other things: change the name of the Trust; modify membership criteria; and alter the composition and makeup of the board of trustees.

According to the Complaint, Marsh became group administrator to the Trust effective on January 1, 2001 pursuant to a Risk Management Services Agreement ("Service Agreement") executed by Marsh and Trustee McIvor on December 19, 2003. By its terms, the Service Agreement was effective for the five year period from January 1, 2001 until December 31, 2005. Under the Service Agreement, Marsh agreed to provide certain services to the Trust, including administrative, risk management, consulting and marketing services. The Service Agreement further provided that "if Marsh has taken over any existing program or policies implemented by another broker [w]ithin 12 months, Marsh will have completed a review of those programs and policies and will make recommendations it believes are necessary."

On September 28, 2006, Marsh and Trustee McIvor executed BUILDERS' Trust Administration Agreement ("First Administration Agreement"), effective for a nine-month term commencing January 1, 2006 until September 30, 2006. Pursuant to the First Administration Agreement, Marsh agreed to provide, inter alia, administrative and insurance brokerage services. The First Administration Agreement further provided that "[w]ithin a reasonable period of time, Marsh will have completed a review of [earlier] programs and policies and will make recommendations it believes are necessary."

On October 31, 2007, Marsh and Trustee McIvor executed a second Trust Administration Agreement ("Second Administration Agreement"), effective for the one-year period from October 1, 2007 until September 30, 2008. The Second Administration Agreement similarly obliged Marsh to provide administrative and insurance brokerage services.

Finally, the Complaint goes on to detail the growing insolvency of the Trust from 2002 onward, and the WCB's regulatory efforts to address the Trust's financial situation prior to its May 1, 2009 takeover.

[*3]LEGAL STANDARD

Under CPLR 3211 (a) (1), dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law (Haire v Bonelli, 57 AD3d 1354, 1356 [3d Dept 2008], citing Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; see Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Angelino v Michael Freedus, D.D.S., P.C., 69 AD3d 1203 [3d Dept 2010]). On such a motion, "affidavits submitted by a defendant do not constitute documentary evidence upon which a proponent of dismissal can rely" (Crepin v Fogarty, 59 AD3d 837, 838 [3d Dept 2009]).

On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a claim, "the Court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC 1, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). The Court's "sole criterion is whether the pleading states a cause of action" (Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001] [internal quotations omitted]). However, the Court need not "accept as true legal conclusions or factual allegations that are either inherently incredible or flatly contradicted by documentary evidence" (1455 Washington Ave. Assoc. v Rose & Kiernan, 260 AD2d 770, 771 [3d Dept 1999] [internal citations omitted]). As with a motion under CPLR 3211 (a) (1), the Court must "ignore the affidavits submitted by defendants" (Henbest & Morrisey Inc. v W. H. Ins. Agency, 259 AD2d 829, 830 [3d Dept 1990]).

Dismissal is warranted under CPLR 3211 (a) (5) where the movant establishes that a cause of action may not be maintained due to the expiration of the statute of limitations. The movant bears the initial burden of supporting the motion with "an affidavit or other competent proof sufficient, if uncontroverted, to establish the [statute of limitations] defense as a matter of law" (State Higher Educ. Services Corp. v Starr, 158 AD2d 771, 771 [3d Dept 1990]; accord Romanelli v DiSilvio, 76 AD3d 553, 554 [2d Dept 2010]). Upon such a showing, "the burden shifts to the party opposing the motion to aver evidentiary facts" sufficient to defeat the statute of limitations defense or at least raise factual questions concerning the defense (Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822, 823 [3d Dept 1990]; see Doyon v Bascom, 38 AD2d 645 [3d Dept 1971]).

Finally, under CPLR 3211 (a) (8), the burden of proving jurisdiction rests upon the party asserting it. Thus, on a motion to dismiss, the plaintiff is obliged "to come forth with definite evidentiary facts to support" the exercise of personal jurisdiction over the defendant (Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832, 833 [3d Dept 1988]).

THE TRUSTEES

The cause of action for breach of contract alleges that the Trustees failed to perform their obligations under the Trust Agreement and Rules & Regulations, including but not limited to: failing to provide for the proper capitalization of the Trust; setting improper contribution rates; failing to comply with the Trust's membership requirements relative to the admission and removal of members; failing to prevent conflicts of interest; and failing to assure the sound administration of the Trust.

The cause of action for fraud alleges that the Trust Agreement and other governing documents of the Trust constitute written representations by the Trustees "that they would properly and competently manage the Trust funds and oversee the administration of the Trust" [*4](Complaint ¶ 172). The Complaint alleges that Trustees McIvor and Zubin acted in a disloyal manner in order to further the interests of NFBA: "By having builders' associations, such as NFBA . . . , receive referral commissions from the [the Trust] for every association member who joined the Trust while simultaneously representing that the Trustees were not receiving any compensation from [the Trust] for their duties as Trustees", these Trustees are alleged to have made fraudulent misrepresentations of fact (id. ¶ 178).^[FN1] The Complaint also alleges fraud in connection with Trustee McIvor's actions in causing the NFBA building to be released as collateral shortly before the WCB's takeover of the Trust. Finally, the Complaint alleges that the Trustees made false representations concerning their qualifications, willingness and ability to properly manage the Trust (id. ¶¶ 186-188).

A.Personal Jurisdiction

Trustee LaRocque moves to dismiss the Complaint for lack of personal jurisdiction, arguing that he improperly was served with process at his former residential address. The WCB does not oppose this branch of his motion. Accordingly, the Complaint is dismissed as against LaRocque for lack of personal jurisdiction.^[FN2]

B.Statute of Limitations

1.Breach of Contract

The statute of limitations for a breach of contract claim is six years (CPLR 213 [2]). Under New York law, "a breach of contract cause of action accrues at the time of the breach" (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]; see CPLR 203 [a]). The date of the breach is controlling even where damages from the breach are not sustained until later and even where the "injured party may be ignorant of the existence of the wrong or injury" (Ely-Cruikshank, 81 NY2d at 403 [internal quotation marks omitted]).

Where, as here, "a contract provides for continuing performance over a period of time, each breach may begin the running of the statute anew such that accrual occurs continuously and plaintiffs may assert claims for damages occurring up to six years prior to filing of the suit" (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 80 [4th Dept 1980]). However, "so much of the causes of action asserted by [plaintiff] as accrued more than six years prior to the commencement of the instant action must be dismissed as time-barred" (Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 65 AD3d 1226, 1228 [2d Dept 2009]).

Thus, the issue is whether any breaches of the Trust Agreement are alleged to have occurred on or after November 30, 2006, six years prior to the commencement of this action (see generally State of NY Workers' Compensation Board v Madden, 38 Misc 3d 1229 (A) [Sup Ct Albany County] ["Madden"]).

At the outset, the WCB concedes that the documentary evidence submitted by Trustee [*5]Greene conclusively establishes that his resignation as a Trustee occurred no later than October 4, 2006 and that the statute of limitations has run on both claims asserted against him. Accordingly, the branch of Greene's motion seeking dismissal pursuant to CPLR 3211 (a) (5) is granted on consent.^[FN3]

While Trustees McIvor and Zubin join in Greene's motion to dismiss on statute of limitations grounds, their submissions do not include any documentary evidence establishing the dates upon which their trusteeships terminated.^[FN4] In the absence of such proof, the Court must conclude that their service as trustees continued until May 1, 2009, when the WCB assumed administration of the Trust. As such, the WCB's claim for breach of contract is timely with respect to the period from November 30, 2006 through May 1, 2009.

In this connection, the Court necessarily rejects the Trustees' argument that the cause of action for breach of contract merely is a disguised claim for breach of fiduciary duty that is subject an expired three-year statute-of-limitations. While courts must look to the reality and essence of the causes of action alleged in the complaint (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264 [1937]), the WCB has pleaded the existence of an enforceable contract between the Trust and the Trustees (the Trust Agreement), the Trustees' breaches of the Trust Agreement and the incorporated Rules & Regulations, performance of the same by the Trust, and resulting damages. No more is required (see Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [3d Dept 2009]). To be sure, the nature of the relationship between the Trustees and the Trust also may have given rise to a claim for breach of fiduciary duty, but no such cause of action is asserted, and the Trustees cite no authority that the potential availability of such a cause of action forecloses a breach of contract claim under the circumstances presented herein. Of course, the contractual duties owed by the Trustees to the Trust may be different and more limited in scope than their duties as fiduciaries, but the issue at this juncture is merely whether the WCB has stated a cause of action for breach of contract, not whether it can prove such a claim.

Further, contrary to the Trustees' contention, nothing in Madden forecloses such a contract claim. Indeed, Madden specifically allowed the WCB to proceed on a contractual theory against former GSIT trustees. Moreover, certain of the trustees in Madden argued that language in the relevant trust agreement providing that the duties and obligations of the trustees shall be limited to those imposed by the subject trust agreement negated the existence of any common-law fiduciary duties and left the WCB with only a breach of contract claim. While the Court did not need to reach this contention in Madden, it should be noted that similar language appears here in Section 6.1 of the Trust Agreement.

[*6]2.Fraud

A cause of action alleging fraud generally is subject to a six-year statute-of-limitations, but such a claim may be brought within "two years from the time the [plaintiff] . . . discovered the fraud, or could with reasonable diligence have discovered it" (CPLR 213 [8]). Here, the alleged fraud relative to disloyalty continued throughout Trustees McIvor and Zubin's service, and the allegations pertaining to the release of the NFBA building as collateral apparently are directed at conduct in or around 2009. Accordingly, the remaining Trustees have not demonstrated their entitlement to dismissal of the fraud claim as barred by the six-year limitations period of CPLR 213 (8), even without regard to application of the two-year discovery rule.

C.Standing/Capacity

The remaining Trustees allege that the WCB lacks standing to maintain claims on behalf of the Trust. They argue that 12 NYCRR § 317.20, which authorizes the Chair of the WCB

to "assume administration and final distribution of [an insolvent GSIT's] assets", does not confer legal successorship rights upon the WCB or permit the agency to pursue litigation on behalf of the Trust. The Court disagrees.

The broad authority of the WCB to "assume administration" of the Trust plainly carries with it the power to prosecute litigation as the successor-in-interest to the Trust. Moreover, any right of action possessed by the Trust against the defendants is an asset (see Canron Corp. v City of New York, 89 NY2d 147, 156 [1996]), which therefore is subject to the agency's administration and, ultimately, final distribution. And the fact that a Trustee may enjoy a potential right of indemnification under Section 5.12 of the Trust Agreement "if he . . . acted in good faith and in a manner believed to be in or not opposed to the best interests of the [self insurance] Program and the Members" cannot serve to defeat the WCB's standing to maintain this action in its capacity as successor-in-interest to the Trust.

Accordingly, the Court is satisfied that the WCB may prosecute the claim for breach of contract against the Trustees in its capacity as successor-in-interest to the Trust. For similar reasons, the WCB may pursue a claim alleging that the Trust was defrauded by the Trustees. However, the Court agrees with the Trustees that the WCB may not pursue a claim of fraud on behalf of Trust members. A cause of action alleging that employer-members were fraudulently induced to join the Trust belongs to the former members, not the Trust or its successor-in-interest. Accordingly, so much of the fourth cause of action as is premised on the claim that employers were fraudulently induced to become Trust members must be dismissed.

D.Sufficiency of Fraud Claim

A cause of action for fraud requires plaintiff to allege a misrepresentation or concealment of a material fact, falsity, scienter, justifiable reliance on the deception, and resulting injury (Lusins v Cohen, 49 AD3d 1015, 1017 [3d Dept 2008]). The circumstances constituting the fraud must be stated in detail (CPLR 3016 [b]).

Insofar as the claim of fraud is grounded upon alleged misrepresentations in the Trust's governing documents that the Trustees would properly and competently manage all Trust funds and oversee the administration of the Trust, the Complaint fails to allege a viable claim of fraud. To establish a fraud claim arising in connection with a contractual relationship, "the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties" [*7](Krantz v Chateau Stores of Canada, 256 AD2d 186, 187 [1st Dept 1998]; see Cole, Schotz, Meisel, Forman & Leonard, P.A. v Brown, 2013 NY Slip Op 06088 [1st Dept] ["Rather, the promise concerns the corporate defendant's performance of the promise itself"]). In other words, the alleged fraud must be "sufficiently discrete from that underlying the breach of contract claim [in order to] state a separate cause of action" (Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1129 [3d Dept 2011] As the fraud alleged in the Complaint pertains directly "to the manner in which defendant agreed to perform under the [contracts]" and concerns "promises to perform in the future pursuant to a contract", this aspect of the fraud claim "merely duplicates claims for breach of contract" (Reiser Inc. v Roberts Real Estate, 292 AD2d 726, 727-728 [3d Dept 2002]). As such, it must be dismissed.

For similar reasons, so much of the fraud claim as is premised upon allegations that the Trustees were not receiving any compensation from the Trust must be dismissed. The issue of trustee compensation is addressed directly in the relevant contract (Trust Agreement, § 5.12), and the Complaint identifies no misrepresentations of fact or insincere promises of future performance made by defendants collateral to the Trust Agreement (HSH Nordbank AG v UBS AG, 95 AD3d 185, 206 [1st Dept 2012]).

Finally, the Complaint fails to allege any actionable misrepresentation or concealment on the part of Trustee McIvor in allegedly causing the NFBA building to be released as collateral shortly before the WCB's takeover of the Trust. In the absence of an articulated misrepresentation or concealment of a material fact in connection with the release, the allegations fail to plead a cause of action for common-law fraud.

Based on the foregoing, the claim of fraud must be dismissed as against the Trustees.

E.Lack of Damages

Finally, the remaining Trustees contend that the Complaint must be dismissed because the WCB is unable to establish damages as a matter of law. As stated above, the WCB seeks to recover the outstanding insolvency of the Trust from the former trustees.

In arguing that the WCB cannot prove cognizable damages, the Trustees assert that "the WCB wants to burden private entities and individuals with its Legislatively-imposed duties as payor of last resort when a group self-insurance becomes insolvent." In making this argument, the Trustees rely upon the following language in Madden, which articulated why the WCB cannot maintain a claim for implied indemnification to recover the outstanding deficit of a GSIT in its capacity as the State agency charged with administration of the Workers' Compensation Law:

. . . [The] alleged "loss" purely is the product of a legislative determination of New York State regarding the continuation of benefits to injured workers. And the same statutory scheme by which the State Legislature has made the WCB the payor of last resort establishes a process for infusing the necessary funds into the agency's administrative fund through assessments on the self-insurance industry (see id.). In light of the nature and source of the WCB's obligation and the presence of a comprehensive statutory [*8]scheme that does not include a right of indemnification, the Court sees no basis in law or appellate precedent for implying separate duties running from the former trustees or professional advisors of GSITs to the WCB

But the Trustees' argument fundamentally misconstrues the above-quoted language and disregards the critical language that precedes it, which explained why the WCB does not possess a claim for implied indemnity in its capacity as successor-in-interest to an insolvent GSIT:

The key element of a cause of action for common-law indemnification is an implied duty running from the indemnitor to the indemnitee, separate from any direct duty owed by the indemnitor to the injured party (Raquet, 90 NY2d at 183). But where the injured party and the indemnitee are one and the same, there is no need to imply a separate restitutionary duty, as the injured party can pursue direct claims (see Peoples' Democratic Republic of Yemen v Goodpasture, Inc., 782 F2d 346, 350 [2d Cir 1986]). For this reason, a party cannot obtain the advantage of the generous statute of limitations applicable to indemnity claims by styling its direct claims as ones for indemnity (see Bunker, 80 AD2d at 818). And since the Trust cannot pursue indemnification from defendants, neither can the WCB in its capacity as successor in interest

Thus, Madden held that because the WCB possesses direct claims for damages against former GSIT trustees as successor-in-interest to a GSIT, there is no basis for implying a separate restitutionary duty to the Trust (or its successor in interest). As such, the language relied upon by the Trustees actually supports the WCB's position that it may sue the Trustees for contract damages as successor in interest to the Trust. Moreover, the WCB need not establish that the entire accumulated deficit is the product of the Trustees' misconduct; its claim for damages is viable so long as the alleged breaches of contract contributed in some part to the deficit.^[FN5]

MARSH

A.Breach of Contract

The contract claim, brought by the WCB as successor-in-interest to the Trust, alleges that Marsh breached the Service Agreement and the First and Second Administration Agreements (collectively "Administration Agreements") by: (a) failing to properly calculate and adjust the experience modification rates ("EMRs") for each Trust member each year; (b) providing Trust members with large premium discounts that were inconsistent with the member's "loss runs" and/or its EMR; (c) failing to calculate contribution rates in accordance with the particular needs of the Trust and its membership claims profile; and (d) failing to originate, follow and/or consistently apply underwriting guideline in recommending the acceptance or rejection of a participating employer's application for participation. Additionally, the Complaint alleges that [*9]Marsh breached the First Administration Agreement by failing to review the programs and policies of FCS and provide recommendations to the Trustees based on its review.

Marsh contends that the breach of contract claim is barred by the applicable six-year statute of limitations. As this action was commenced on November 30, 2012, the issue distills to whether the Complaint alleges any breaches of contract on or after November 30, 2006. Additionally, Marsh argues that any claim for breach of contract after November 30, 2006 is conclusively defeated by documentary evidence.

As an initial matter, the Service Agreement expired on December 31, 2005 and the First Administration Agreement expired on September 30, 2006. As these contracts expired more than six years prior to the commencement of this action and the WCB has not identified any post-termination obligations of Marsh that allegedly were breached, the Court concludes that any claimed breaches of the Service Agreement and First Administration Agreement — including the claim that Marsh breached the First Administration Agreement by failing to review the programs and policies of FCS and make recommendations to the Trustees based on its review — must be dismissed as time barred.

With regard to Marsh's alleged breaches relative to review of new membership applications, the WCB submits an affidavit and documentary proof demonstrating that at least five members were admitted to the Trust from October 1, 2006 through October 1, 2007,^[FN6] and the WCB argues that Marsh was obliged to review these applicants pursuant to the provisions of the First Administration Agreement. However, even assuming that these were, in fact, "new" applications,^[FN7] the Complaint fails to allege the existence of an enforceable agreement imposing review obligations upon Marsh at relevant times. While the WCB conjectures that "[i]t is possible that the Trustees and Marsh have a backdated contract for the period" between the effectiveness of the First and Second Administration Agreements, mere speculation that a contract might exist is insufficient to survive a motion to dismiss, particularly where the plaintiff has been in control of the Trust for more than four years and has had the benefit of a full forensic review of the Trust (see CPLR 3211 [d]). And even if one of the Administration Agreements (or a similar agreement) had been in effect during the period from October 1, 2006 through October 1, 2007, Marsh's obligation under the Administration Agreements with respect to a new member was limited to the preparation of documents required for the admittance of the member, based upon information provided by the applicant. Accordingly, the allegations of breach regarding Marsh's review of new member applications must be rejected.

With regard to the alleged failure of Marsh to set proper premiums and discounts and to [*10]properly adjust and calculate EMRs, Marsh argues principally that by October 16, 2006, the Trust and the WCB had entered into a Consent Agreement whereby the Trust's contribution rates were automatically set "at the 2005 NYCIRB manual rate as provided by By The Numbers Acturial Consulting, Inc." Pursuant to the Consent Agreement, "[t]his rate assumes an experience modification factor of .969, the full NYS Assessment surcharge of 18.6%, and also assumes no discount." It is Marsh's contention that the Consent Agreement divested it of any obligation to set premiums and discounts or to adjust and calculate EMRs.

In opposition, the WCB takes the position that the Consent Agreement did not supersede Marsh's relevant contractual obligations. Further, with regard to EMRs, the WCB submits an affidavit from Mary Beth Woods, who negotiated the Consent Agreement on the agency's behalf, and a confirming email from Robert Bossert, her counterpart at Marsh, supporting the WCB's position that the manual premium was intended to be adjusted by the employer's individual EMR. Relatedly, the WCB argues that Marsh was obliged to calculate premiums in such a way to ensure that admittance of the new member would not cause the Trust to deviate from break-even status.

The Court concludes that the terms of the Consent Agreement conclusively defeat most, but not all, of these alleged breaches of contract. The Consent Agreement plainly contemplated the use of manual premiums with no discounting, and there is no basis in the Administration Agreements or the Consent Agreement for finding an obligation on the part of Marsh to maintain the Trust in "break-even" status. However, the WCB's submissions in opposition to the motion, including Marsh's own emails, raise questions as to whether the parties intended the manual premiums to be adjusted by individual EMRs. As the obligation to compute individual EMRs for members continued under the Second Administration Agreement, which was in effect during the relevant statutory period, and Marsh has failed to conclusively establish that the Consent Decree served to extinguish, limit or eliminate the possibility of breach of this obligation, the portion of the claim alleging that Marsh failed to calculate and adjust EMRs and to set premiums accordingly cannot be dismissed.

Accordingly, the cause of action for breach of contract must be dismissed, except to the limited extent stated immediately above.^[FN8]

B.Unjust Enrichment

The second cause of action against Marsh, claiming unjust enrichment, alleges that Marsh was compensated for services it did not perform and/or inadequately performed under the Service Agreement and Administration Agreements. Further, it is alleged that Marsh was compensated for services it did not perform and/or inadequately performed after the Second Administration Agreement expired on September 30, 2008. According to the WCB, Marsh therefore received a financial benefit to the detriment of the Trust and has failed to make adequate restitution to the Trust for such unjust compensation. On the basis of the foregoing allegations, the WCB seeks recovery of $2,171,624 in fees paid to Marsh.

As an initial matter, as there is no dispute that the Service Agreement and Administration [*11]Agreements represent binding and enforceable contracts between the Trust and Marsh, the cause of action seeking recovery in quasi-contract for the periods in which those contracts were in effect must be dismissed (Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1131 [3d Dept 2011]).

Further, the parties agree that the claim for unjust enrichment is governed by a six-year statute-of-limitations, so allegations of unjust enrichment prior to November 30, 2006 must be dismissed as time barred.

However, claims that Marsh was unjustly enriched by receipt of compensation following the termination of the Second Administration Agreement is not barred by the statute of limitations. Further, as amplified by the WCB's submissions in opposition to Marsh's motion, the Complaint also can be understood as alleging unjust enrichment from November 30, 2006 until the Second Administration Agreement entered into force and effect. Accordingly, Marsh has failed to demonstrate its entitlement to dismissal of the claim, as limited herein.

CONCLUSION

Accordingly,^[FN9] it is

ORDERED that defendants' motions to dismiss plaintiff's complaint are granted in part and denied in part in accordance with the foregoing; and it is further

ORDERED that within thirty days from service of this Decision & Order upon defendants with notice of entry, the remaining parties shall confer and plaintiff shall contact Chambers with several proposed dates and times for the holding of a preliminary conference; and finally it is

ORDERED that prior to said preliminary conference, counsel shall consult and confer in accordance with Rule 8 of the Commercial Division.

This constitutes the Decision & Order of the Court. This Decision & Order is being transmitted to plaintiff's counsel for filing and service. The signing of this Decision & Order shall not constitute entry or filing under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

October 16, 2013

RICHARD M. PLATKIN

A.J.S.C.

Papers Considered:

Notice of Motion of Defendant Greene, dated May 20, 2013;

Defendant Greene's Memorandum of Law, dated May 20, 2013;

Affirmation of Jason E. Markel, Esq., dated May 17, 2013, with attached exhibits 1-3;

Affidavit of Michael Papa, Esq., sworn to July 15, 2013, with attached exhibits A-D; [*12]

Affidavit of Mary Beth Woods, sworn to July 15, 2013, with attached exhibits A-K;

Plaintiff's Memorandum of Law, dated July 15, 2013;

Reply Affirmation of Jason E. Markel, Esq., dated August 27, 2013, with attached exhibit A;

Defendant Greene's Reply Memorandum of Law, dated August 27, 2013;

Notice of Motion of Defendant Zubin, dated May 31, 2013;

Affirmation of Brian C. Mahoney, Esq,. dated May 31, 2013, with attached exhibit A;

Defendant Zubin's Reply Memorandum of Law, dated August 29, 2013;

Notice of Motion of Defendant McIvor, dated June 6, 2013;

Affirmation of Jeffery D. Palumbo, Esq., dated June 6, 2013, with attached exhibit A;

Reply Affidavit of Michael L. Amodeo, Esq., dated August 29, 2013;

Defendant McIvor's Reply Memorandum of Law, dated August 29, 2013;

Notice of Motion of Defendant LaRocque, dated June 10, 2013;

Affirmation of Michael C. Conway, Esq., dated June 10, 2013, with attached exhibits A-B;

Notice of Motion of Defendant Marsh U.S.A., Inc., dated June 27, 2013;

Affirmation of Sandra D. Hauser, Esq., dated June 27, 2013, with attached exhibit 1;

Affidavit of Robert C. Bossert, sworn to August 28, 2013, with attached exhibits 1-4;

Reply Memorandum of Law of Defendant Marsh U.S.A., Inc., dated August 29, 2013.