This matter comes before the Court on Defendant PGA Tour, Inc.'s motion to dismiss pursuant to Section 3211(a)(1), (a)(5), and (a)(7) of the New York Civil Practice Law and Rules ("CPLR"), seeking the entry of an order dismissing the complaint. Plaintiff Vijay Singh opposes. For the reasons that follow, Defendant's motion is granted in part and denied in part.

Plaintiff is an individual with residences in Florida and New York. Defendant is a Maryland not-for-profit corporation, with offices in Florida and New York. Defendant "does continuous and systematic business in New York, employs personnel in New York and hosts events in New York," including golf tournaments.^[FN2] (Complaint ("Compl.") ¶ 3.) [*2]

Plaintiff is a professional golfer and a lifetime member of Defendant's organization. Defendant organizes men's professional golf tournaments and events throughout North America. In 2008, Defendant enacted an anti-doping program (the "Program"), which prohibits the use of certain substances by Defendant's members. The terms of the Program are set forth in the Anti-Doping Program Manual (the "Manual"). The list of prohibited substances contained in the manual is adopted from a list of prohibited substances maintained by the World Anti-Doping Agency ("WADA"). As a condition of membership in Defendant's organization, golfers, including Plaintiff, consent to be bound by the terms of the Program, as set forth in the Manual.

In 2012, on the advice of his caddie, Plaintiff began using a product called "deer antler spray" to address Plaintiff's knee and back problems. Plaintiff used the spray during his off-season, over a period of approximately one month. Plaintiff ingested the spray orally by spraying it into his mouth.

On January 29, 2013, an article was posted on Sports Illustrated's website, www.SI.com, discussing an athletic supplement company, which made the deer antler spray used by Plaintiff. The article referenced Plaintiff's use of the deer antler spray, suggesting that by using the spray, Plaintiff had, in fact, used a banned substance.

Immediately after the article's release, Plaintiff contacted Defendant to address the allegation that Plaintiff had used a banned substance. Plaintiff provided one of Defendant's representatives with a bottle of the deer antler spray for testing. Also, in the prior week, Plaintiff had submitted a urine sample which tested negative for any banned substance.

Defendant sent the bottle of spray to the UCLA Olympic Analytical Laboratory for testing. In a report dated February 14, 2013, that laboratory determined that the contents of the bottle tested "negative for anabolic androgenic steroids." (Compl. ¶ 36.) However, the report did identify "IGF-1" as one of the substances contained in the bottle's contents. IGF-1 is also listed as a prohibited substance in the Manual. (Defendant's Exhibit ("Def.'s Ex.") B at 20.)

Following the issuance of the laboratory's report, Defendant determined that Plaintiff had a committed an anti-doping violation by using the spray. Subsequent to Plaintiff's submission of a written explanation, Defendant informed Plaintiff that he had committed an anti-doping violation, and that, as a result, Plaintiff would be suspended from activities related to Defendant's organization for a period of 90 days. In addition, Plaintiff's earnings from competition in Defendant's tournaments would be held in escrow.

On February 25, 2013, pursuant to the procedure set forth in the Manual, Plaintiff timely appealed Defendant's determination that Plaintiff had committed an anti-doping violation, and commenced an arbitration proceeding before the American Arbitration Association. Defendant [*3]informed Plaintiff that he would be allowed to play in Defendant's tournaments during the pendency of his appeal, but that any prize money would continue to be held in escrow and that Plaintiff risked forfeiture of those winnings if he did not prevail on his appeal.

On April 30, 2013, approximately one week before the first scheduled arbitration hearing, Defendant ceased its disciplinary action against Plaintiff, and the arbitration was discontinued. Several days earlier, WADA determined that deer antler spray should be removed from its list of prohibited substances, and informed Defendant of its decision to do so.

On May 8, 2013, Plaintiff commenced this action against Defendant, alleging, among other things, that Defendant recklessly administered its anti-doping program, exposing Plaintiff to ridicule and humiliation; that Defendant placed Plaintiff's prize money in escrow without legal authority; and that Defendant inconsistently disciplined golfers who had admitted using deer antler spray, and in some cases, imposed no discipline at all. Plaintiff asserts causes of action for negligence, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotion distress, and conversion.

Defendant moves for dismissal, arguing that the Manual's release provision and arbitration clause provide that Plaintiff has effectively waived his right to bring an action before this Court. In addition, Defendant argues that this Court should dismiss the complaint on the basis of the doctrine of judicial noninterference. Finally, Defendant argues that Plaintiff has failed to sufficiently plead each cause of action in the complaint.

On a motion to dismiss for failure to state a cause of action (CPLR 3211(a)(7)), the court must accept each and every allegation as true and liberally construe the allegations in the light most favorable to the pleading party. Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977); see CPLR 3211(a)(7). "We . . . determine only whether the facts as alleged fit within any cognizable legal theory." Leon v. Martinez, 84 NY2d 83, 87-88 (1994).

A motion to dismiss must be denied if the factual allegations contained within "the pleadings' four corners . . . manifest any cause of action cognizable at law." 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-52 (2002). While factual allegations contained in a complaint should be accorded a favorable inference, bare legal conclusions and inherently incredible facts are not entitled to preferential consideration. Sud v. Sud, 211 AD2d 423, 424 (1st Dep't 1995).

Where the motion to dismiss is based on documentary evidence (CPLR 3211(a)(1)), the claim will be dismissed "if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." Leon, 84 NY2d at 88; see 150 Broadway NY Assocs., L.P. v. Bodner, 14 AD3d 1, 5 (1st Dep't 2004). Where the defendants have presented documentary evidence, the court is required to determine "whether the proponent of the pleading has a cause of action, not whether he has stated one." Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 AD2d 143, 150 (1st Dep't 2001).

CPLR 3211(a)(5) provides for dismissal where "the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy [*4]or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds." CPLR 3211(a)(5).

II.The First, Second, and Third Causes of Action — Negligence

According to the First Department, "[t]o establish a prima facie case of negligence under New York law, a plaintiff must demonstrate that the defendant owed him or her a duty of reasonable care, a breach of that duty, and a resulting injury proximately caused by the breach." Elmaliach v. Bank of China Ltd., 110 AD3d 192, 199-200 (1st Dep't 2013). Stated another way, "[p]ursuant to New York law, the traditional common-law elements of negligence' are: duty, breach, damages, causation and foreseeability.'" Cactus 4, LLC v. Swisa, 2012 NY Slip Op. 30119(U), at *9 (Sup. Ct. NY Cnty. Jan. 11, 2012) (quoting Hyatt v. Metro-North Commuter R.R., 16 AD3d 218, 218 (1st Dep't 2005)).

Defendant argues that Plaintiff has failed to establish the first two elements in each of the three negligence claims, that is, the existence of a duty and a breach thereof. Specifically, Defendant contends that Plaintiff's negligence claims fail as a matter of law because they are premised upon duties imposed by contract. Under New York law, Defendant argues, contractual duties (or breach thereof) cannot form the basis for a negligence claim.

In each of the three causes of action for negligence, Plaintiff alleges the existence of a duty to take certain steps pursuant to the Program. It is undisputed that Plaintiff subjected himself to the requirements of the Program by completing a membership renewal form each year. (Def.'s Exs. C, D.) It is also undisputed that the membership renewal form is a contract between the parties, which subjects Plaintiff to, among other things, the terms of the Program. Accordingly, treating all allegations in the complaint as true, the duties imposed on either party by the Program are contractual in nature.

The First Department has held that "claims based on negligent or grossly negligent performance of a contract are not cognizable." City of New York v. 611 West 152nd St., Inc., 273 AD2d 125, 126 (1st Dep't 2000). Thus, where a "cause of action for negligence . . . allege[s] no more than that plaintiffs were injured by defendant's actions with respect to [an] alleged contract," that cause of action "should have been dismissed since no cause of action exists for negligent performance of a contract." Fluhr v. Goldscheider, 264 AD2d 570, 571 (1st Dep't 1999). "[A]bsent the allegation of a duty owed by defendant independent of the contract . . . , a valid cause of action for negligence is not stated." Wapnick v. Seven Park Ave. Corp., 240 AD2d 245, 247 (1st Dep't 1997).

Here, the duties alleged with respect to each of the three negligence causes of action are contractual in nature because they are created by the Program. In the first cause of action, Plaintiff alleges that Defendant owed Plaintiff "a duty to determine which substances were necessary to ban to protect the integrity that is inherent in the sport of golf and to ensure the health and safety of all players.'" (Compl. ¶ 87.) In the second cause of action, Plaintiff alleges that Defendant owed Plaintiff "a duty to determine whether the substance it alleged Singh consumed via the Spray was actually a substance banned by the Anti-Doping Program." (Compl. ¶ 93.) In the third cause of action, Plaintiff alleges that Defendant's duty was to "to determine whether Singh used' IGF-1, as required in order to impose discipline under the Anti-Doping Program." (Compl. ¶ 97.) [*5]

Plaintiff's arguments against dismissal are unavailing. Plaintiff contends that the duty with respect to each negligence cause of action was not contractual in nature, but, rather, "arises out of the PGA TOUR's status as the principal guardian of the game." (Plaintiff's Memorandum in Opposition ("Pl.'s Opp. Mem.") at 14.) However, that contention is contrary to, and refuted by, the allegations in the complaint excerpted above.

In addition, Kimmell v. Schaefer, 89 NY2d 257 (1996), which is cited by Plaintiff for the proposition that "a contractual relationship cannot bar a negligence claim where there is a special relationship' between the parties," is inapposite. (Pl.'s Opp. Mem. at 14.) Kimmell addresses negligent misrepresentation and, in that context, the duty to speak with care. Kimmell, 89 NY2d at 264 (finding that "[t]he existence of such a special relationship may give rise to an exceptional duty regarding commercial speech and justifiable reliance on such speech"). Here, the claims are for negligence, not negligent misrepresentation. Also, Plaintiff has not alleged a breach of the duty to speak with care.

Accordingly, the First, Second, and Third Causes of Action are dismissed.

III.The Fourth Cause of Action — Breach of the Implied Covenant of Good Faith and Fair Dealing

"In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance." 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 153 (2002). As the Court of Appeals has explained, "[w]hile the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship,' they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included.'" 511 W. 232nd Owners Corp., 98 NY2d at 153 (quoting Murphy v. American Home Prods. Corp., 58 NY2d 293, 304 (1983); Rowe v. Great Atl. & Pac. Tea Co., 46 NY2d 62, 69 (1978)). Notably, "[w]here the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion." Dalton v. Educ. Testing Serv., 87 NY2d 384, 389 (1995) (citing Tedeschi v. Wagner Coll., 49 NY2d 652, 659 (1980)). Moreover, this implied obligation includes "a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" Dalton, 87 NY2d at 389 (quoting Kirke La Shelle Co. v. Paul Armstrong Co., 263 NY 79, 87 (1933)).

Section 2H(5) of the Manual provides that following the determination that a player may have committed an anti-doping rule violation, "[t]he Commissioner, in consultation with the Program Administrator, shall consider any information submitted by the player and shall then decide whether to go forward with an anti-doping rule violation against the player." (Def.'s Ex. B at 12.) In addition, Section 2K of the Manual provides a list of possible sanctions, and also provides that "the Commissioner may depart from the sanction guidance in the International Anti-Doping Standards as he deems appropriate in a particular case." (Def.'s Ex. B at 14.)

Here, Plaintiff alleges that Defendant has inconsistently disciplined golfers who admitted using deer antler spray. (Compl. ¶¶ 44, 47.) Specifically, Plaintiff alleges that in 2011, golfer Mark Calcavecchia also admitted that he used deer antler spray and was not disciplined by Defendant. (Compl. ¶¶ 45-46.) Rather, Calcavecchia was merely told to stop using the spray. [*6](Compl. ¶ 46.) In addition, Plaintiff alleges, upon information and belief, that Defendant "is aware of other golfers who have used the Spray but has not attempted to discipline those other golfers." (Compl. ¶ 47.)

Plaintiff also alleges that Defendant, prior to making the determination that Plaintiff committed an anti-doping violation, failed to fairly and thoroughly investigate Plaintiff's use of the spray by, for example, analyzing the spray and the IGF-1 contained therein; that Defendant imposed discipline on Plaintiff via suspension and placing Plaintiff's winnings in escrow without abiding by the procedural protections set forth in the Manual; and that Defendant delayed the discontinuance of its disciplinary action against Plaintiff despite knowing that WADA had removed deer antler spray from its list of banned substances.

On a motion to dismiss under CPLR 3211, "[w]e accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Leon v. Martinez, 84 NY2d 83, 87-88 (1994) (emphasis added). The sections of the Manual addressing the imposition of anti-doping rule violations and sanctions contemplate the exercise of discretion by Defendant. Nevertheless, accepting Plaintiff's allegations as true, and according them the benefit of every possible favorable inference, the Court finds that Plaintiff has sufficiently pled a cause of action for breach of the implied covenant of good faith and fair dealing.

Accordingly, Defendant's motion to dismiss is denied with respect to the Fourth Cause of Action.

IV.The Fifth Cause of Action — Breach of Fiduciary Duty

"Under New York law, the elements of a cause of action to recover damages for breach of fiduciary duty are (i) the existence of a fiduciary relationship, (ii) misconduct by the defendant, and (iii) damages directly caused by the defendant's misconduct." Bridgers v. West 82nd St. Owners Corp., 2013 NY Slip Op. 32978(U), at *6 (Sup. Ct. NY Cnty. Apr. 22, 2013); accord Del Carmen Onrubia de Beeck v. Costa, 39 Misc 3d 347, 360 (Sup. Ct. NY Cnty. 2013).

At the outset, Plaintiff argues that the particularized pleading requirement of CPLR 3016(b) does not apply to Plaintiff's breach of fiduciary duty claim because it is not based on fraud, referencing an absence of case law to the contrary. (Pl.'s Opp. Mem. at 22 n.19.) CPLR 3016(b) provides that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail."^[FN3] CPLR 3016(b).

In addition to being separately enumerated under CPLR 3016(b), fraud and breach of fiduciary duty are distinct causes of action under New York law. Compare Greater NY Mut. Ins. Co. v. United States Underwriters Ins. Co., 36 AD3d 441, 443 (1st Dep't 2007) (stating the elements of a claim of fraud) with Bridgers, 2013 NY Slip Op. 32978(U), at *6 (stating the elements of a claim of breach of fiduciary duty).

Moreover, the First Department has held that a cause of action for breach of fiduciary duty is subject to the particularized pleading requirement of CPLR 3016(b), without reference to [*7]a separate requirement that such a claim be based on fraud. Berardi v. Berardi, 108 AD3d 406, 407 (1st Dep't 2013) (citing CPLR 3016(b)); Peacock v. Herald Sq. Loft Corp., 67 AD3d 442, 443 (1st Dep't 2009). Other courts have likewise held that "[a] cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b)," without conditioning that section's applicability on the existence of fraud. Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804, 808 (2d Dep't 2011); see Forbush v. Goodale, 2013 NY Misc. LEXIS 650, at *8 (Sup. Ct. NY Cnty. Feb. 4, 2013) (finding that "the complaint is subject to the more strict pleading requirements of CPLR 3016(b) since it alleges a breach of a fiduciary duty").

Also, contrary to Plaintiff's assertions, there is ample case law supporting dismissal of a breach of fiduciary duty claim for failure to satisfy CPLR 3106(b)'s particularized pleading requirement, without any requirement that the cause of action be based upon fraud or even reference to or use of the term "fraud." See, e.g., Hyman v. New York Stock Exch., Inc., 46 AD3d 335, 336 (1st Dep't 2007) (finding that a "motion to dismiss the cause of action for breach of fiduciary duty . . . should have been granted . . . . [where] Plaintiff's bare allegations . . . fail[ed] to satisfy the pleading requirements of CPLR 3016(b)"); see also Berardi, 108 AD3d at 407; Deblinger v. Sani-Pine Prods. Co., 107 AD3d 659, 661 (2d Dep't 2013); Messiah's Covenant Community Church v. Weinbaum, 74 AD3d 916, 919 (2d Dep't 2010); Peacock v. Herald Sq. Loft Corp., 67 AD3d 442, 443 (1st Dep't 2009).

Accordingly, the Court finds that the particularized pleading requirement of CPLR 3016(b) applies to a cause of action for breach of fiduciary without any requirement that the cause of action be based upon or relate to underlying allegations of fraud. That is, in order to survive a motion to dismiss under CPLR 3211, each element of a cause of action for breach of fiduciary duty must be supported by particularized factual allegations, as opposed to mere legal or factual conclusions.

To establish a fiduciary relationship, a plaintiff must show that the defendant was " under a duty to act for or to give advice for the benefit' of the plaintiff upon matters within the scope of the relation.'" EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005) (quoting Restatement (Second) of Torts § 874 cmt. a (1979)). The First Department has observed that the "failure to plead facts giving rise to a fiduciary relationship" warrants dismissal of a cause of action for breach of fiduciary duty. Dove v. L'Agence, Inc., 250 AD2d 435, 435 (1st Dep't 1998) (citing CPLR 3016(b)).

Plaintiff alleges that he "reposed trust and confidence" in Defendant "to act in the best interests of the game and him" and that Plaintiff agreed to be subject to the Program based on Defendant's "advice, superior knowledge and expertise." (Compl. ¶ 107.) Likewise, Plaintiff alleges that he cooperated with Defendant's investigation "based on his trust and confidence in the PGA TOUR." (Compl. ¶ 107.) Plaintiff further alleges that Defendant enacted the Program in 2008 in order to " protect the integrity that is inherent in the sport of golf and to ensure the health and safety of all players'" and that Plaintiff subjected himself to the terms of the Program by renewing his membership with Defendant. (Compl. ¶¶ 8, 14.)

Plaintiff's allegations regarding the existence of a fiduciary relationship between Plaintiff and Defendant are insufficiently particularized to satisfy the requirements of CPLR 3016(b). Specifically, the nature of the parties' relationship as set forth in the complaint, that of an [*8]individual member subject to the oversight of a governing body, does not support the conclusion that Defendant was " under a duty to act for or to give advice for the benefit' of the plaintiff upon matters within the scope of the relation.'" EBC I, Inc., 5 NY3d at 19. Moreover, Plaintiff's allegations that Defendant was under a duty to "to act in the best interests of the game and him" or that Plaintiff "reposed trust and confidence" in Defendant are conclusory and unavailing.

Also insufficient is Plaintiff's allegation that Defendant breached its duty to Plaintiff "by intentionally exposing [him] to public ridicule." (Compl. ¶ 108.) Plaintiff has alleged no particularized facts supporting this conclusion.

Finally, Plaintiff's breach of fiduciary duty claim is duplicative of the fourth cause of action, for breach of the implied covenant of good faith and fair dealing, because the breach of fiduciary duty claim "fails to allege breach of any fiduciary duty independent of the contract itself." Morgenroth v. Toll Bros., Inc., 60 AD3d 596, 597 (1st Dep't 2009) (citing William Kaufman Org., Ltd. v. Graham & James LLP, 269 AD2d 171, 173 (1st Dep't 2000)) (dismissing a breach of fiduciary duty claim as duplicative of a breach of contract claim).

Accordingly, the Fifth Cause of Action is dismissed.

V.The Sixth Cause of Action — Intentional Infliction of Emotional Distress

Under New York law, "the elements of a claim for intentional infliction of emotional distress are (i) extreme and outrageous conduct, (ii) an intent to cause—or disregard of a substantial probability of causing—severe emotional distress, (iii) a causal connection between the conduct and the injury, and (iv) the resultant severe emotional distress." Lau v. S & M Enters., 72 AD3d 497, 498 (1st Dep't 2010) (citing Howell v. NY Post Co., 81 NY2d 115, 121 (1993)).

Conduct is considered "extreme and outrageous" when it is " so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Goldstein v. Mass. Mut. Life Ins. Co., 60 AD3d 506, 508 (1st Dep't 2009) (quoting Howell, 81 NY2d at 122).

Courts examining whether conduct rises to the level of being "extreme and outrageous" often look for a pattern of conduct and consider a defendant's acts on a cumulative basis. See Goldstein, 60 AD3d at 508 (finding that demands for reports made at a "permissible frequency and the occasional delay in the payment of benefits" did not rise to the level of "extreme and outrageous conduct"); Graupner v. Roth, 293 AD2d 408, 410 (1st Dep't 2002) (explaining that separate landlord-tenant disputes and breach of contract claims, "even viewed cumulatively," do not come "even close to approaching the threshold of outrageousness needed to support a cause of action for intentional infliction of emotional distress"). Indeed, the First Department has observed that "[c]ourts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation.'" Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 AD2d 332, 332 (1st Dep't 1998).

Here, the conduct alleged does not rise to the level of being "extreme and outrageous." Lau, 72 AD3d at 498. The gravamen of the complaint is that Defendant concluded that Plaintiff committed an anti-doping violation without properly investigating; that in doing so, Defendant treated Plaintiff differently than it treated other golfers who used the same substance; and that [*9]Plaintiff was damaged as a result. Even treating each allegation as true and drawing all favorable inferences in Plaintiff's favor, the conduct alleged is simply not " so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Goldstein, 60 AD3d at 508. That is, the conduct described does not constitute a " deliberate and malicious campaign of harassment or intimidation.'" Cohn-Frankel, 246 AD2d at 332. Moreover, Plaintiff's conclusory allegations that Defendant "acted in an outrageous and extreme manner" do not otherwise satisfy the standard. (Compl. ¶ 111.)

Accordingly, the Sixth Cause of Action is dismissed.

VI.The Seventh Cause of Action — Conversion

Under New York law, "[a] conversion occurs when a party, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession.'" Lynch v. City of New York, 108 AD3d 94, 101 (1st Dep't 2013) (quoting Colavito v. NY Organ Donor Network, Inc., 8 NY3d 43, 49-50 (2006)). " Two key elements of conversion are (1) the plaintiff's possessory right or interest in the property and (2) the defendant's dominion over the property or interference with it, in derogation of plaintiff's rights.'" Lynch, 108 AD3d at 101 (quoting Colavito, 8 NY3d at 49-50). Moreover, "[a]n action for conversion of money may be made out where there is a specific, identifiable fund and an obligation to return or otherwise treat in a particular manner the specific fund in question.'" Thys v. Fortis Sec. LLC, 74 AD3d 546, 547 (1st Dep't 2010).

According to the First Department, "the general rule with regard to the measure of damages in conversion is to award the value of the property at the time of conversion, together with interest." Will of Rothko, 56 AD2d 499, 503 (1st Dep't 1977). In addition, "if plaintiff accepts return of the property," damages may include "the loss flowing from the conversion." Chow v. Kshel Realty Corp., 2011 NY Slip Op. 31149(U), at *65 (Sup. Ct. NY Cnty. Apr. 27, 2011).

Plaintiff seeks damages "for the loss of use of the property taken, with interest," alleging that he has a possessory interest in the earnings that were held in escrow and that Defendant "took possession of [Plaintiff's] earnings and refused to release those funds to Plaintiff or interest on those funds." (Compl. ¶¶ 116-18.) Plaintiff also alleges that Defendant held the prize money in escrow "without authority or legal support." (Compl. ¶ 42.) Plaintiff alleges that a total of $99,980.00 in prize money was held in escrow, which constituted Plaintiff's earnings from participating in several tournaments held during the period from February 2013 through April 2013. (Compl. ¶¶ 79-80.) While not explicitly stated in the complaint, the parties do not dispute that the prize money held in escrow was returned following the cessation of the disciplinary action. (Pl.'s Opp. Mem. at 24; Def.'s Mem. Supp. at 25.)

Defendant argues that it was legally authorized to place Plaintiff's prize money in escrow pursuant to Section 2L of the Manual. (Def.'s Mem. Supp. at 24-25.) Section 2L is the only provision of the Manual addressing Defendant's authority to hold prize money in escrow. (Def.'s Ex. B at 15.) It provides that "[i]f a player is not Provisionally Suspended after Notice provided in section H(5) and the player chooses to continue participating in any tournaments pending the resolution of the case, then any prize money won by the player may be held in escrow pending [*10]the outcome of the case." (Def.'s Ex. B at 15.)

Section 2H(5) provides, among other things, that "[a]t such time as the Program Administrator determines that a player may have committed an anti-doping rule violation, the player shall be Notified of the potential violation. The player shall have seven (7) calendar days from such Notice to provide a written explanation, including any mitigating or extenuating circumstances." (Def.'s Ex. B at 12.)

Defendant notified Plaintiff, by letter dated February 14, 2013, that Plaintiff had committed an anti-doping rule violation and that Plaintiff had seven days to submit a written explanation. (Compl. ¶¶ 37-38.) Defendant identifies the February 14 letter as the Notice provided for by Section 2H(5). (Def.'s Mem. Supp. at 8.)

By letter dated February 19, 2013, Defendant informed Plaintiff of the disciplinary steps that would be taken in light of his admitted use of the deer antler spray. (Compl. ¶ 40.) The February 19 letter references the fact that Plaintiff's prize money had been held in escrow since his "participation in the AT & T Pebble Beach National Pro-Am," which took place from February 7 to 10, 2013. (Compl. ¶¶ 40, 80.) By letter dated February 26, 2013, Defendant informed Plaintiff that his prize money would be held in escrow pending the resolution of his appeal. (Compl. ¶ 42.)

As discussed above, the Section 2L of the Manual requires that the notice provided for by Section 2H(5) be given before a player's prize money may be placed in escrow. (Def.'s Ex. B at 15.) Here, based on the parties' submissions, it appears that that notice was given on or about February 14, 2013. (Compl. ¶¶ 37-38; Def.'s Mem. Supp. at 8.) However, Plaintiff alleges that his prize money was being held in escrow as early as his "participation in the AT & T Pebble Beach National Pro-Am," which took place from February 7 to 10, 2013. (Compl. ¶¶ 40, 80.) Because Plaintiff alleges that some of the prize money was held in escrow prior to that notice, Plaintiff has sufficiently alleged a cause of action for conversion as to that money only.

Accordingly, Defendant's motion to dismiss is denied with respect to the Seventh Cause of Action.

VII.The Release Provision

Section 2O of the Manual (the "Release") provides that "each player hereby releases the PGA TOUR . . . from any and all claims, demands, damages and causes of action whatsoever, in law or equity, arising out of or in connection with any decision, act or omission arising under the Program." (Def.'s Ex. B at 15.)

Defendant contends that "in accordance with [Plaintiff's] express release of any and all other claims under the terms of the Program, all the claims set forth in his Complaint are foreclosed as a matter of law." (Def.'s Mem. Supp. at 2.) In response, Plaintiff argues that the Release constitutes an unenforceable adhesion contract, (Pl.'s Opp. Mem. at 12-13); but, for the reasons set forth below, the Court need not reach that determination at this juncture.

The Court of Appeals has observed that "the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny." Gross v. Sweet, 49 NY2d 102, 106 (1979). However, "[t]o the extent that agreements purport to grant exemption for liability for willful or grossly negligent acts they have been viewed as wholly [*11]void." Gross, 49 NY2d at 106 (finding that the parts of the "plaintiff's complaint as contains allegations that defendant was grossly negligent, may not be barred by the release"). The First Department defines "gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.'" Greenapple v. Capital One, N.A., 92 AD3d 548, 550 (1st Dep't 2012) (quoting Colnaghi, USA. v. Jewelers Protection Servs., Ltd., 81 NY2d 821, 823-24 (1993)).

Plaintiff's allegations with respect to the remaining causes of action—breach of the implied covenant of good faith and fair dealing and conversion—include allegations of willful or grossly negligent acts by Defendant. Examples include that Defendant placed and held Plaintiff's prize money in escrow without legal authorization to do so; that Defendant knowingly delayed its announcement of WADA's decision to remove deer antler spray from its list of banned substances; that Defendant knew or ignored potentially exonerating scientific information about the IGF-1 contained in the spray used by Plaintiff; and that Defendant was reckless in its administration of the Program.

Accordingly, the Release does not provide a basis for dismissing the complaint.

VIII.The Arbitration Clause and Waiver of Judicial Review

Defendant argues that dismissal is warranted by provisions in Plaintiff's membership renewal forms and the Manual addressing arbitration and waiver of judicial review. Specifically, Defendant avers that Plaintiff's claims are related to drug testing and are therefore squarely within the purview of those provisions. As such, Plaintiff's only recourse is through the arbitration process. Moreover, Plaintiff has already achieved the "maximum relief" available, that is, discontinuance of the disciplinary proceeding against him. (Def.'s Mem. Supp. at 12.) In addition, as this action concerns decisions made by Defendant under the Program, Plaintiff's right to judicial review has been waived. Thus, argues Defendant, the complaint should be dismissed.

The section of Plaintiff's membership renewal forms for 2012 and 2013 entitled, "Drug Testing," provides, among other things, "that the Results Management provisions of the Program shall provide the sole and exclusive method for resolving any dispute related to drug testing." (Def.'s Exs. C, D.) Section 2H of the Manual is entitled, "Results Management." (Def.'s Ex. B at 11.) That section provides in pertinent part that "[d]ecisions by the Commissioner regarding anti-doping rule violations . . . may be appealed only as set forth in [Section 2I]." (Def.'s Mem. Supp. at 11; Def.'s Ex. B at 12.) Section 2I, in turn, provides that "[d]ecisions by the Commissioner regarding anti-doping rule violations or regarding Therapeutic Use exemptions may be appealed only as set forth in this section: (1) The appeal shall be administered by the American Arbitration Association ( AAA') and shall be heard before an arbitration panel constituted as described below." (Def.'s Ex. B at 12.) Section 2J provides that "[a]s a condition of membership and the opportunity to participate in PGA TOUR co-sponsored, approved or coordinated tournaments, players expressly waive the right to seek judicial review of final decisions under the Program." (Def.'s Ex. B at 14.)

Indeed, it is well-settled that "New York State law . . . reflects a strong public policy of encouraging, by judicial noninterference, an unfettered, voluntary arbitration system, where equity should be done.'" Matter of Schreiber v. K-Sea Transp. Corp., 30 AD3d 101, 106 (1st Dep't 2006), aff'd, 9 NY3d 331 (2007). A court may correctly find that dismissal of the [*12]complaint is warranted where the dispute should have been resolved through arbitration pursuant to a binding agreement between the parties. Schmal v. McCulla, 274 AD2d 339, 340 (1st Dep't 2000) (finding that dismissal of the complaint was warranted where the "parties clearly agreed to submit any disputes arising under the subject agreement to arbitration as the exclusive remedy"). "[W]hether arbitration is mandated, however, turns entirely on the language of the agreement between the parties." Gomez v. Brill Sec., Inc., 95 AD3d 32, 36 (1st Dep't 2012). Moreover, " a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes.'" Gomez, 95 AD3d at 36 (quoting Waldron v. Goddess, 61 NY2d 181, 183 (1984)).

The language of the membership renewal forms, upon which Defendant places great emphasis, providing "that the Results Management provisions of the Program shall provide the sole and exclusive method for resolving any dispute related to drug testing," (Def.'s Exs. C, D), is not dispositive. Specifically, it is unclear whether, as Plaintiff argues, the instant dispute is related to drug testing. The section on drug testing in the membership renewal forms begins with the acknowledgment that the player "understand[s] that drug testing may be conducted on players" pursuant to the Program. (Def.'s Exs. C, D (emphasis added).) That section goes on to address, among other things, requirements related to the production of urine samples and the possible adverse consequences of failing to do so. However, the testing underlying the causes of action asserted here was not conducted on Plaintiff or Plaintiff's urine sample. Rather, the testing at issue was conducted on a sample of the substance taken by Plaintiff. Moreover, the references to the phrase "drug testing" in the Manual are also related to testing on players, that is, of their urine, as opposed to testing supplements used by players. (Def.'s Ex. B at 2, 4-5, 48.)

As to the Results Management and related provisions in the Manual, those provisions are narrower in scope than the language in the membership renewal forms, addressing the process by which an appeal may be taken from a decision by Defendant's Commissioner. Plaintiff, however, does not appear to be challenging Defendant's Commissioner's decision—arguably there is no need, as the disciplinary proceeding has been discontinued. Instead, Plaintiff is challenging Defendant's conduct in reaching that decision, as well as conduct ancillary to having reached such a decision (e.g., the placing of prize money in escrow). Furthermore, even if Plaintiff wished to challenge such a decision, it is unclear whether Plaintiff could avail himself of the arbitration process set forth in the Program because Defendant's disciplinary action against him was discontinued such that there may no longer be a decision from which Plaintiff could appeal. It would be nonsensical for this Court to dismiss the complaint out of deference to an arbitration process that Plaintiff is unable to use. As such, the remaining causes of action fall outside of the appeal process set forth in the Manual's the Results Management and related provisions.

Section 2J, the provision waiving judicial review, similarly does not provide a basis for dismissal. That section is limited to a waiver of the "right to seek judicial review of final decisions under the Program." (Def.'s Ex. B at 14.) Again, Plaintiff challenges Defendant's conduct incident to reaching a decision under the Program, as opposed to the decision itself. Moreover, now that the disciplinary proceeding against Plaintiff has been discontinued, it is unclear whether there is even a final decision which could be challenged and thereby come within the ambit of the waiver. Finally, Section 2J is unenforceable to the extent that it purports to insulate Defendant from the remaining causes of action for the same reasons as those [*13]identified with respect to the Release. Namely, contractual provisions purporting "to grant exemption for liability for willful or grossly negligent acts . . . have been viewed as wholly void" under New York law. See Gross v. Sweet, 49 NY2d 102, 106 (1979).

Accordingly, the Court finds that the provisions of the Manual and membership renewal forms addressing arbitration and waiver of judicial review do not provide a basis for dismissing the remaining causes of action.

IX.The Doctrine of Judicial Noninterference

Defendant argues that pursuant to the doctrine of judicial noninterference, this Court should defer to Defendant's "application of its own rules in the absence of an allegation that [Defendant] acted in bad faith or illegally." (Def.'s Mem. Supp. at 12.) Defendant cites a number of cases in support of this argument, including Barron v. PGA Tour, Inc., 670 F. Supp. 2d 674 (W.D. Tenn. 2009), which involved a professional golfer's one-year suspension from the PGA Tour events for an anti-doping rule violation. Barron, 670 F. Supp. 2d at 679-80.

Under New York law, the doctrine of judicial noninterference provides that "[c]ourts should not, as a general rule, interfere with the contentions and quarrels of voluntary associations, so long as the government is fairly and honestly administered, and those who have grievances should be required in the first instance to resort to the remedies for redress provided by their rules and regulations." Lafond v. Deems, 81 NY 507, 514 (1880). Cf. Crouch v. Nat'l Assoc. for Stock Car Auto Racing, Inc., 845 F.2d 397, 403 (2d Cir. 1988) (holding that "the district court should have deferred to NASCAR's interpretation of its own rules in the absence of an allegation that NASCAR acted in bad faith or in violation of any local, state or federal laws").

More recently, the First Department has explained that "generally, the internal decision-making and rule adoption of private organizations, involving the conduct of their members and their activities, are outside the realm in which courts exercise their authority." Hammer v. Am. Kennel Club, 304 AD2d 74, 76 (1st Dep't 2003), aff'd, 1 NY3d 294 (2003). The doctrine is not, however, without exception, as "this general rule of noninterference in an organization's self-governance gives way upon a showing that its adopted rules violate state law." Hammer, 304 AD2d at 76.

In Hammer, the First Department held that the doctrine of judicial noninterference was inapplicable because of the allegation that the defendant's conduct was illegal. Hammer, 304 AD2d at 76-77. Notably, the First Department reached its conclusion notwithstanding the fact that dismissal of the complaint was warranted under CPLR 3211(a)(3) and (a)(7). Hammer, 304 AD2d at 82-83. In other words, where a plaintiff alleges that an organization's conduct is illegal, the doctrine of judicial noninterference is inapplicable regardless of whether the complaint fails to state a cause of action.

The court in Barron v. PGA Tour, Inc., which is cited favorably by Defendant, reached a similar conclusion, explaining that " a court should not intervene if it simply disagrees with what it perceives to be an unreasonable application of an organization's rules, but it may do so in response to legitimate allegations of bad faith or illegality.'" Barron, 670 F. Supp. 2d at 682 (quoting M'Baye v. World Boxing Ass'n, 429 F. Supp. 2d 660, 667-68 (S.D.NY 2006)). There, too, the court declined to apply the doctrine of judicial noninterference. Barron, 670 F. Supp. 2d at 682. [*14]

Here, Plaintiff has alleged that Defendant violation of state law by committing a variety of torts and breaching certain implied contractual duties, notwithstanding the fact that these causes of action arise under New York common law. Cox v. NAP Constr. Co., 40 AD3d 459, 461 (1st Dep't 2007), aff'd, 10 NY3d 592 (2008) (observing that "state law causes of action" may be "common-law or statutory").

Plaintiff's lack of recourse under the terms of the Program further supports the conclusion that the doctrine of judicial noninterference is inapplicable. As discussed above, following the discontinuance of the disciplinary proceeding against Plaintiff, it is unclear whether he may still avail himself of the arbitration process provided for by the Program, which is limited to appeals from decisions of Defendant's Commissioner. In addition, Plaintiff arguably seeks redress for the conduct incident to reaching such a decision, as opposed to seeking relief from the decision itself. Thus, it is unclear whether Defendant's "rules and regulations" provide Plaintiff with any "remedies for redress." Lafond, 81 NY at 514. Also, because Plaintiff has alleged that Defendant has inconsistently enforced the terms of the Program where other golfers admitted using the spray, there is a plausible argument that Defendant's "government is [not being] fairly and honestly administered." Lafond, 81 NY at 514.

Accordingly, the Court finds that the doctrine of judicial noninterference does not provide a basis for dismissing the remaining causes of action.

ACCORDINGLY, it is hereby

ORDERED, that the first, second, third, fifth, and sixth causes of action are dismissed, and the motion is denied in all other respects; and it is further

ORDERED, that Defendant PGA Tour, Inc., is directed to serve an answer to the complaint within 20 days after service of a copy of this decision and order with notice of entry.

This constitutes the decision and order of the Court.

Dated: New York, New York

February 13 , 2014

ENTER:

/s/ Eileen Bransten

Hon. Eileen Bransten, J.S.C.