     18-0575-cv
     PHL v. Town of Oyster Bay



 1                          UNITED STATES COURT OF APPEALS

 2                                FOR THE SECOND CIRCUIT

 3                                               ------

 4                                       August Term, 2018

 5   (Argued: October 24, 2018                                           Decided: July 9, 2019)

 6                                     Docket No. 18-0575-cv

 7   _________________________________________________________

 8   PHL VARIABLE INSURANCE COMPANY,

 9                                                     Plaintiff-Appellant,

10                                      - v. -

11   TOWN OF OYSTER BAY,

12                                          Defendant-Appellee.
13   _________________________________________________________

14   Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, and MEYER,

15        District Judge*




     *    Judge Jeffrey A. Meyer, of the United States District Court for the District of Connecticut,
          sitting by designation.
 1                Appeal from so much of an order of the United States District Court for

 2   the Eastern District of New York, Sandra J. Feuerstein, Judge, as denied

 3   reconsideration of a final judgment dismissing plaintiff's amended complaint alleging

 4   claims of, inter alia, breach of contract, innocent misrepresentation, and fraud in

 5   connection with plaintiff's loan to a licensee of defendant Town of Oyster Bay that

 6   was allegedly secured by the Town. The district court declined to reconsider its

 7   original decision granting the Town's motion pursuant to Fed. R. Civ. P. 12(b)(6) to

 8   to dismiss the amended complaint for failure to state a claim, on the

 9   ground—adhered to in the postjudgment order—that the amended complaint did not

10   plausibly allege that the claimed agreement by the Town had been approved by the

11   Town's governing board through a resolution as required by New York Town Law

12   § 64(6), and hence did not plausibly allege the existence of a valid and enforceable

13   contract. See PHL Variable Insurance Co. v. Town of Oyster Bay, 16-CV-4013, 2017 WL

14   2371188, at *12 (E.D.N.Y. May 30, 2017); Opinion and Order dated January 29, 2018.

15   On appeal, plaintiff contends principally that the court (a) erred in failing to view the

16   amended complaint as alleging board authorization of the contract, (b) erred in ruling

17   that PHL failed to allege actionable misrepresentation, and (c) abused its discretion

18   in refusing to allow plaintiff to file a second amended complaint to allege ratification.


                                                2
 1   We note that certain of plaintiff's contentions are beyond the scope of its notice of

 2   appeal. Finding no merit in any of its contentions, we affirm.

 3               Affirmed.

 4                      BRYAN F. LEWIS, Islandia, New York (Jennifer H. McGay,
 5                          Lewis Johs Avallone Aviles, Islandia, New York, on
 6                          the brief), for Plaintiff-Appellant.

 7                      KATHLEEN M. SULLIVAN, New York, New York
 8                          (Jonathan E. Pickhardt, Rex Lee, Monica E. Tarazi,
 9                          Quinn Emanuel Urquhart & Sullivan, New York,
10                          New York, on the brief), for Defendant-Appellee.




11   KEARSE, Circuit Judge:

12               Plaintiff PHL Variable Insurance Company ("PHL") appeals from so

13   much of an order of the United States District Court for the Eastern District of New

14   York, Sandra J. Feuerstein, Judge, as denied reconsideration of a final judgment

15   dismissing PHL's amended complaint ("Amended Complaint") alleging claims of,

16   inter alia, breach of contract, innocent misrepresentation, and fraud, in connection

17   with PHL's making to a licensee of defendant Town of Oyster Bay ("Town") a loan

18   that was allegedly secured by the Town. The district court declined to reconsider its

19   original decision granting the Town's motion pursuant to Fed. R. Civ. P. 12(b)(6)



                                              3
 1   to dismiss the Amended Complaint for failure to state a claim, on the

 2   ground—adhered to in the postjudgment order—that the amended complaint did not

 3   plausibly allege that the claimed agreement by the Town had been approved by the

 4   Town's governing board through a resolution as required by New York Town Law

 5   § 64(6), and hence did not plausibly allege the existence of a valid and enforceable

 6   contract. See PHL Variable Insurance Co. v. Town of Oyster Bay, 16-CV-4013, 2017 WL

 7   2371188, at *12 (E.D.N.Y. May 30, 2017) ("D.Ct. 2017 Opinion"); Opinion and Order

 8   dated January 29, 2018. On appeal, PHL contends principally that the court (a) erred

 9   in failing to view the amended complaint as alleging Board authorization of the

10   contract, (b) erred in ruling that PHL failed to allege actionable misrepresentation,

11   and (c) abused its discretion in refusing to allow plaintiff to file a second amended

12   complaint to allege Board ratification of the contract. Finding no merit in plaintiff's

13   contentions, we affirm.




14                                    I. BACKGROUND




15                The following account is based on nonconclusory factual allegations in

16   the Amended Complaint, which we accept as true for purposes of reviewing the

17   dismissal pursuant to Rule 12(b)(6).


                                               4
 1   A. The Municipal Concession Contracts

 2                The Town, located in Nassau County, New York, owns and operates

 3   several recreational facilities, including a municipal golf course ("Golf Course") that

 4   offers multiple dining and concession facilities ("Facilities"). The claims asserted by

 5   PHL relate to agreements entered into by the Town with one or more nonparty

 6   entities for the operation of food and beverage services at the Golf Course and for the

 7   funding and implementation of major capital improvements to the Golf Course club

 8   house.

 9                In an October 2000 agreement between the Town and nonparty SRB

10   Catering Corp. d/b/a H.R. Singleton's Classic American Grille ("SRB Catering"), the

11   Town licensed SRB Catering, for a 20-year term, to operate the Golf Course dining

12   and concession facilities, for which it would pay fees to the Town, and required SRB

13   Catering to, inter alia, expend approximately $2,097,000 in making specific capital

14   improvements to the Facilities within the first three years of the agreement

15   ("Concession Agreement"). This Concession Agreement, attached to the Amended

16   Complaint as Exhibit A, was authorized by Town Board Resolution 638-2000. Upon




                                               5
 1   completion and acceptance of the work, title to all capital improvements was to vest

 2   in the Town. (See Concession Agreement ¶ 39(g).)

 3               The Concession Agreement, whose term was to end on December 31,

 4   2020, gave the Town an option to renew SRB Catering's license, extending it for a

 5   10-year period. In April 2005, in light of the fact that SRB Catering, while only

 6   obligated by the Concession Agreement to expend $2,097,000 in making capital

 7   improvements, had in fact expended $4,600,000 for such improvements, the Town

 8   entered into an agreement with nonparty SRB Convention and Catering Corp., d/b/a

 9   The Woodlands and PassionFish ("SRB Convention"), that amended the Concession

10   Agreement ("2005 Amendment" or "FACA"). (See Amended Complaint ¶¶ 17-18 &

11   Exhibit B.) The parties during this litigation have treated SRB Catering and SRB

12   Convention as the same entity, see, e.g., D.Ct. 2017 Opinion, at *2 n.2 (noting such

13   treatment despite indications that SRB Catering and SRB Convention were different

14   entities), and the 2005 Amendment made no distinction between the two. The FACA

15   at the outset defined SRB Convention as "the 'CONCESSIONAIRE'"; its introductory

16   "WHEREAS" clause referred to the "major capital improvements heretofore

17   performed" at the Golf Course "by the CONCESSIONAIRE"; and paragraph 37

18   referred to license fees that "the CONCESSIONAIRE began to pay the TOWN" on


                                              6
 1   "January 1, 2001." Accordingly, we will refer to SRB Catering and SRB Convention

 2   singly or collectively as "SRB."

 3                The FACA, which was authorized by Town Board Resolution No.

 4   313-2005, provided, inter alia, that the Town accepted the $4,600,000 in capital

 5   improvements already made "by the CONCESSIONAIRE" and noted that "[t]he

 6   CONCESSIONAIRE may make additional capital improvements . . . at its own cost

 7   and expense, with no setoff" against payments due the Town (FACA ¶ 39(b)). It

 8   noted the Town's option to renew the Concession Agreement for a "ten-year renewal"

 9   period and stated that the Town "exercises the renewal" and that the "[FACA] shall

10   be effective through December 31, 2029 [sic]." (FACA ¶ 37.)

11                In September 2008, the Town and SRB, after additional capital

12   improvements had been made, entered into another agreement to amend the

13   Concession Agreement ("2008 Agreement").        The 2008 Agreement, which was

14   authorized by Town Board Resolution No. 889-2008, noted that SRB, having been

15   obligated to expend $2,097,000 and having actually expended $4,600,000, "now

16   proposed to make an additional $3,250,000 in capital improvements, to the facility,

17   within the next three years." (2008 Agreement at 1.) The 2008 Agreement required

18   SRB to make the additional $3,250,000 in improvements by the end of 2011; and "[i]n


                                             7
 1   consideration," the Town extended the term of the licence for an additional 20 years,

 2   through December 31, 2049. (Id. at 2.)




 3   B. Enter PHL

 4                 "Sometime during 2010, SRB determined that it would require financing

 5   to, inter alia, properly operate the Facilities and complete the improvements required

 6   by the terms of" the 2008 Agreement (Amended Complaint ¶ 22), and it entered into

 7   negotiations with an entity that was "a loan broker for PHL" (id. ¶ 24). The Amended

 8   Complaint alleged that "PHL was unwilling to commit loan money to SRB" because

 9   SRB "had no collateral to support any potential loan." (Id. ¶¶ 25-26.) Accordingly,

10   PHL sought "a transaction that would assure that PHL would receive significant

11   monies from [the Town] in the event that SRB defaulted in its repayment obligations."

12   (Id. ¶ 27.)

13                 The Amended Complaint alleged that the respective attorneys for SRB,

14   the Town, PHL, and its broker "collaboratively created a vehicle whereby," if SRB

15   defaulted on its loan, the Concession Agreement would be terminated automatically

16   and "[the Town] would be required to" pay PHL the outstanding balance on SRB's

17   loan. (Id. ¶ 28.)


                                               8
 1                      29. As a result of the successful conclusion of those
 2                negotiations, []PHL agreed to provide financing to SRB in the
 3                amount of $7,843,138.08, inclusive of interest ("Loan").

 4                      ....

 5                       31. Additionally, contemporaneously with, and as part of
 6                the Loan transaction, SRB and [the Town] agreed to amend the
 7                Concession Agreement. That amendment was effectuated by a
 8                certain Amendment to Concession Agreement dated as of November
 9                18, 2011, a true and accurate copy of which is attached hereto as
10                Exhibit F . . . .

11   (Amended Complaint ¶¶ 28-29, 31 (italics in original).) And pursuant to that

12   subsequent "Amendment to Concession Agreement" (which, similarly to the district

13   court, we will refer to as the "SACA"), if SRB defaulted on its loan, the Town would

14   be obligated to pay PHL "as described above" (id. ¶ 32).

15                In addition, the SACA provided that even if SRB did not default on its

16   loan, if the Town terminated the Concession Agreement for cause—e.g., for SRB's

17   failure to make contractual payments to the Town (see Concession Agreement

18   ¶ 32)—the Town would be required to make a "Cause Termination Payment" to PHL

19   (Amended Complaint ¶ 33). The amount of such a payment would be "five percent

20   (5%) of the capital improvements made by SRB to the Facilities for each year[], or part

21   of a year, remaining in the initial term of the [Concession Agreement]," including



                                               9
 1   renewal periods, up to "100% of the value of said improvements"—which "as of the

 2   date" of the SACA were agreed to have an "aggregate value" of "$10,000,000.00." (Id.

 3   (italics in original).)

 4                 PHL, which was not a party to the SACA, was thus "an intended third-

 5   party beneficiary of the [SACA]" (Amended Complaint page 11, ¶ 39). The SACA

 6   provided that the Town's obligation to pay PHL "would not be subject to any

 7   defenses, including but not limited to, the defenses of bankruptcy, or insolvency of

 8   [SRB]." (Id. ¶ 34.)




 9   C. The Present Action

10                 SRB ultimately ceased making payments to PHL on its loan, and in or

11   about November 2015, PHL demanded payment of the balance from the Town. As

12   of June 2016, the amount demanded by PHL totaled $6,252,623.82, including principal

13   of $3,853,002.29. (See, e.g., Amended Complaint page 11, ¶ 38.) The Town refused

14   to pay, stating that the SACA was "of no legal effect because" it "purport[s] to make

15   [the Town] a guarantor of the . . . [L]oan, which violates Article VIII, § 1 of the New

16   York State Constitution, and because [the SACA] was [not] authorized by a Town




                                               10
 1   Board Resolution, as required under New York State Town Law § 64(6)." (E.g.,

 2   Amended Complaint page 14, ¶ 39 (internal quotation marks omitted).)

 3               PHL commenced the present action in July 2016, asserting 12 causes of

 4   action for damages: two alleging breach of contract; one alleging unjust enrichment;

 5   and nine alleging fraudulent, or negligent, or innocent misrepresentations in three

 6   documents PHL received from firms or attorneys representing or employed by the

 7   Town. In the misrepresentation claims, PHL alleged that it had agreed to make the

 8   SRB loan only after receiving from the Town Attorney a copy of the SACA (attached

 9   to the Amended Complaint as Exhibit F) stating that if SRB defaulted on its loan

10   obligations to PHL or on its Concession Agreement obligations to the Town, the

11   Town agreed to make payments to PHL (see, e.g., Amended Complaint page 22,

12   ¶¶ 35-36), and only after demanding and receiving an opinion letter from the Deputy

13   Town Attorney and an opinion letter from the Town's outside counsel (see, e.g.,

14   Amended Complaint page 13, ¶¶ 35-38; id. pages 15-16, ¶¶ 37-38; id. Exhibits I and

15   K). Both of the opinion letters stated that the Town had the "power and authority to

16   conduct the business" described in the SACA, that the SACA was "duly authorized

17   by all necessary action" by the Town, and that the SACA was a "valid binding

18   obligation" of the Town. (Id. page 13, ¶ 38; id. page 15, ¶ 38.) The Amended


                                             11
 1   Complaint alleged that PHL had reasonably relied on the representations in the

 2   SACA and the opinion letters and that they were knowingly or negligently or

 3   innocently false.

 4                The Town moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the

 5   Amended Complaint for failure to state a claim on which relief can be granted, based

 6   on, inter alia, the absence of a Town Board resolution authorizing the SACA. The

 7   district court granted the motion in May 2017, concluding principally, as described

 8   below, that the SACA was invalid because there was no indication in the Amended

 9   Complaint that the SACA was ever approved or ratified by the Town Board, as

10   required by New York statutory law. See D.Ct. 2017 Opinion, 2017 WL 2371188,

11   at *19. Judgment was entered in June 2017 dismissing the action. Following a timely

12   motion by PHL for reconsideration as to the dismissal of its claims for breach of

13   contract, innocent misrepresentation, and fraud, the court granted reconsideration in

14   part, rescinding certain of its original rationales—which are no longer at issue—but

15   adhered to other rationales that required dismissals. See Opinion and Order dated

16   January 29, 2018 ("D.Ct. 2018 Order" or "2018 Order").




                                              12
 1         1. The May 2017 Decision

 2               In concluding that PHL's contract claims must be dismissed for lack of

 3   a valid contract between PHL and the Town, the district court stated principally as

 4   follows:

 5                       "[A] municipality's power to contract is statutorily restricted
 6               for the benefit of the public." Genesco Entm't, a Div. of Lymutt
 7               Indus., Inc. v. Koch, 593 F. Supp. 743, 748 (S.D.N.Y. 1984); see also
 8               Scarborough Props. Corp. v. Village of Briarcliff Manor, 278 N.Y. 370,
 9               375-76, 16 N.E.2d 369 (N.Y. 1938) ("The power of a [municipality]
10               to enter into contracts and to incur financial obligations is subject
11               to statutory conditions and restrictions intended to protect the
12               inhabitants and taxpayers against ill-considered or extravagant
13               action.") "Town Law § 64(6) demands that a formal resolution be
14               passed by the Town Board and executed by the Town Supervisor in
15               the name of the Town before a Town can be bound by any contract."
16               Verifacts Grp., Inc. v. Town of Babylon, 267 A.D.2d 379, 379, 700
17               N.Y.S.2d 75 (N.Y. App. Div. 1999); see also Glenville Police
18               Benevolent Ass'n v. Mosher, 31 A.D.3d 874, 875, 816 N.Y.S.2d 915
19               (N.Y. App. Div. 2006) ("Town Law § 64(6) makes abundantly clear
20               that a town cannot be bound contractually unless the contract has
21               been approved by the town board and executed by the supervisor
22               in the town's name.") "Absent strict compliance with the formal
23               requirements of this statute, no valid contract binding a Town may be
24               found to exist." Verifacts, 267 A.D.2d at 379, 700 N.Y.S.2d 75; see also
25               Granada Bldgs., Inc. v. City of Kingston, 58 N.Y.2d 705, 708, 458
26               N.Y.S.2d 906, 444 N.E.2d 1325 (N.Y. 1982) ("Municipal contracts
27               which violate express statutory provisions are invalid[.]"); Mans
28               Constr. Oversite, Ltd. v. City of Peekskill, 114 A.D.3d 911, 911-12, 980
29               N.Y.S.2d 822 (N.Y. App. Div. 2014) ("A municipal contract which
30               does not comply with statutory requirements or local law is
31               invalid and unenforceable[.]" (quotations and citation omitted));


                                                13
 1                Goldberg v. Penny, 163 A.D.2d 352, 353 (N.Y. App. Div. 1990) ("It
 2                is fundamental that a municipality can only contract for an
 3                authorized purpose and then only in the manner provided by
 4                statute.").

 5   D.Ct. 2017 Opinion, 2017 WL 2371188, at *11 (emphases ours). The district court

 6   noted that

 7                "[a] party contracting with a municipality is chargeable with
 8                knowledge of the statutes which regulate its contracting powers
 9                and is bound by them[.]" Parsa v. State of New York, 64 N.Y.2d 143,
10                147, 485 N.Y.S.2d 27, 474 N.E.2d 235 (N.Y. 1984); . . . Town of
11                Oneonta v. City of Oneonta, 191 A.D.2d 891, 892, 594 N.Y.S.2d 838
12                (N.Y. App. Div. 1993) ("The powers of a municipal corporation are
13                wholly statutory and every person who deals with such a body is bound
14                to know the extent of its authority and the limitations on its power[.]")

15   D.Ct. 2017 Opinion, 2017 WL 2371188, at *11 (emphasis ours). The court concluded

16   that

17                        [s]ince there is no indication in the amended complaint that the
18                SACA was ever approved by the Town Supervisor or ratified by the
19                Town Board, the amended complaint fails to state a plausible claim
20                that a valid and binding contract existed between SRB Convention and
21                the Town that was intended for plaintiff's benefit. See, e.g., Merrick
22                Gables Ass'n, Inc. v. Town of Hempstead, 691 F. Supp. 2d 355, 363
23                (E.D.N.Y. 2010) (dismissing the plaintiffs' breach of contract claim
24                because there was no indication that the alleged agreement[s]
25                were ever approved by the Hempstead Town Supervisor or
26                ratified by the Hempstead Town Board); Plaza Drive Grp. of CNY,
27                LLC v. Town of Sennett, 115 A.D.3d 1165, 982 N.Y.S.2d 610 (N.Y.
28                App. Div. 2014) (granting judgment in favor of the Town of
29                Sennett declaring that a certain unsigned letter agreement was not


                                                 14
 1                 a binding contract and was unenforceable against it because the
 2                 plaintiff had not alleged that the Sennett Town Board considered
 3                 or approved the letter agreement as required by [N.Y.] Town Law
 4                 § 64(6) so as to establish a valid contract.).

 5   D.Ct. 2017 Opinion, 2017 WL 2371188, at *12 (emphases added). The court noted in

 6   addition that "although the [attorneys' letters] . . . and the SACA refer to the Town

 7   Resolutions approving the prior agreements relating to the SACA, (see id., Exs. F, I

 8   and K), there is no indication in those documents, the pleadings or any of the other documents

 9   attached to the amended complaint that the Town Board ever passed a Town Resolution

10   approving the SACA." D.Ct. 2017 Opinion, 2017 WL 2371188, at *12 (emphases added).

11                 In opposition to the Town's motion to dismiss on the basis that there had

12   been no Town Board authorization, PHL had submitted Town Resolution No.

13   256-2010. The court found that resolution inapposite, however, because it

14                 merely "authorized and directed" the Town Supervisor "to enter
15                 into an agreement with" [SRB Convention's and . . . [a third SRB-
16                 named entity's] "bank relating to the loan, and an agreement with
17                 [SRB Convention and . . . [that third SRB-named entity] regarding
18                 the use of the loan proceeds at [the Golf Course and TOBAY
19                 Beach], subject to the negotiation of acceptable terms in said
20                 agreements."

21   D.Ct. 2017 Opinion, 2017 WL 2371188, at *12 n.8 (quoting Town Resolution No.

22   256-2010 (emphasis in district court opinion)). In addition to noting that this language



                                                  15
 1   amounted to "nothing more than" approval of an agreement in principle "'in which

 2   . . . material term[s] [are] left for future negotiations,'" and which constitutes "an

 3   unenforceable 'agreement to agree,'" D.Ct. 2017 Opinion, 2017 WL 2371188, at *12 n.8

 4   (quoting 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91, 571

 5   N.Y.S.2d 686, 687 (1991)), the district court pointed out that "there is no indication that

 6   [R]esolution [No. 256-2010], which was adopted in March 2010, is related in any way to the

 7   loan plaintiff made to SRB Convention in November 2011, almost two (2) years later."

 8   D.Ct. 2017 Opinion, 2017 WL 2371188, at *12 n.8 (emphases added).

 9                The court ruled that the absence of Town Board authorization for the

10   Town to enter into the SACA also required dismissal of PHL's claim for unjust

11   enrichment because

12                       "[w]here the Legislature provides that valid contracts may
13                be made only by specified officers or boards and in specified
14                manner, no implied contract to pay for benefits furnished by a
15                person under an agreement which is invalid because it fails to
16                comply with statutory restrictions and inhibitions can create an
17                obligation or liability of the [municipality]. . . . The creation of an
18                obligation against the town, by way of contract, cannot be
19                founded upon omission of action by the town officials, but must
20                be the result of an affirmative determination to create the
21                obligation in the form and manner provided by statute." New York
22                Tel. Co. v. Town of N. Hempstead, 41 N.Y.2d 691, 696, 395 N.Y.S.2d
23                143, 363 N.E.2d 694 (N.Y. 1977) (quotations and citations omitted).
24                "[E]quitable powers of the courts may not be invoked to sanction


                                                 16
 1                disregard of statutory safeguards and restrictions." Seif [v. City of Long
 2                Beach], 286 N.Y. [382,] 387-88, 36 N.E.2d 630 [(N.Y. 1941)].
 3                Accordingly, "[a]s a general rule, a claim against a municipality in
 4                quantum meruit will not lie where the original contract is void as
 5                contrary to statute or ultra vires[.]" Vrooman v. Village of Middleville,
 6                91 A.D.2d 833, 834, 458 N.Y.S.2d 424 (N.Y. App. Div. 1982), lv.
 7                denied, 58 N.Y.2d 610, 462 N.Y.S.2d 1028, 449 N.E.2d 427 (N.Y.
 8                1983).

 9   D.Ct. 2017 Opinion, 2017 WL 2371188, at *13 (emphases ours). The court also saw in

10   the Amended Complaint "no indication that any of the proceeds of the loan [PHL]

11   made to SRB . . . were actually utilized in any way to bestow a direct benefit upon the

12   Town." Id. at *14.

13                With regard to PHL's fraud claims, the court noted, inter alia, that for a

14   contract to be "valid and binding," it "required Town Board approval," and found that

15   because "it is clear from the face of the SACA that it did not comply with the statutory

16   requirements [of New York law], PHL . . . could not have reasonably relied upon the

17   purported misrepresentations in the" attorneys' opinion letters. Id. at *16 (emphasis

18   added). Nor were there "any factual allegations [in the Amended Complaint] from

19   which it may be reasonably inferred that [PHL] justifiably relied upon the purported

20   misrepresentations" in those opinion letters. Id. at *18.




                                                  17
 1                The court dismissed PHL's claims of innocent and negligent

 2   misrepresentation for the same reason, as well as because the Amended Complaint

 3   did not contain "any factual allegations from which a special relationship between

 4   [PHL] and [the Town] . . . may reasonably be inferred," id. at *19.




 5         2. The January 2018 Order

 6                On PHL's motion for reconsideration, the district court, although

 7   rescinding some of its earlier rationales, adhered to all of the above reasoning leading

 8   to the dismissal of PHL's claims of breach of contract, fraud, and innocent

 9   misrepresentation. See D.Ct. 2018 Order at 2.

10                The court also denied PHL's motion for leave to file a second amended

11   complaint in order to allege ratification of the SACA on the basis of "newly

12   discovered evidence," consisting principally of a resolution—Resolution No.

13   253-2014—adopted by the Town Board in 2014 ("2014 Resolution"). The court noted

14   that while that resolution contained references to the agreements reached by the

15   Town with SRB in 2000, 2005, and 2008, see id. at 13-14,

16                [t]here is no reference to the SACA in the 2014 Resolution, nor any
17                basis to infer therefrom that the Town Board had any knowledge
18                of the existence or terms of the SACA.

19   D.Ct. 2018 Order at 14.

                                               18
 1                                      II. DISCUSSION




 2                On appeal PHL contends principally that the district court erred in

 3   dismissing the Amended Complaint because it failed to note the presence of

 4   allegations sufficient to allege (1) the existence of an enforceable contract, (2) PHL's

 5   entitlement to recover damages for unjust enrichment, and (3) the existence of a

 6   special relationship between PHL and the Town sufficient to support claims of

 7   actionable misrepresentations, including negligent misrepresentation. PHL also

 8   contends that the court abused its discretion in denying PHL's request for leave to file

 9   a second amended complaint in order to allege Board ratification.              We are

10   unpersuaded.




11   A. The Scope of the Appeal

12                We note at the outset an issue as to our jurisdiction to entertain PHL's

13   contentions challenging the dismissal of certain of its claims. Rule 3(c) of the Federal

14   Rules of Appellate Procedure provides that a notice of appeal "must designate the

15   judgment, order, or part thereof appealed from." Fed. R. App. R. 3(c)(1)(B). We


                                               19
 1   generally lack jurisdiction to review a decision that was not mentioned in the notice

 2   of appeal. See, e.g., Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995) (ruling

 3   that this Court, on an appeal from an order dismissing a claim upon reconsideration,

 4   had "no jurisdiction to review the district court's earlier decision to dismiss [a

 5   different claim]," since the appellant "fail[ed to mention the [earlier] order in his

 6   notice of appeal," and the court's reconsideration order in no way revisited its earlier

 7   dismissal). However, we "liberally construe" notices of appeal where the appellant's

 8   intention is discernable, such as where a notice of appeal from a judgment was filed

 9   and withdrawn because of a pending motion to amend the judgment, and the

10   subsequent notice of appeal mentioned only the denial of the motion to amend and

11   not the judgment itself. E.g., State Trading Corp. of India v. Assuranceforeningen Skuld,

12   921 F.2d 409, 413 (2d Cir. 1990).

13                In the present case, the first paragraph of PHL's Notice of Appeal dated

14   February 27, 2018 ("Notice of Appeal") stated that

15                      [n]otice is hereby given that PHL . . . hereby appeals to [this
16                Court] from the Opinion and Order of the United States District
17                Court for the Eastern District of New York, entered in this action
18                on the 29th day of January, 2018 ("January 29, 2018 Order").

19   (Notice of Appeal at 1.) The second and final paragraph of the Notice of Appeal

20   stated as follows:

                                                 20
 1                       The January 29, 2018 Order granted branches of plaintiff's
 2                motion pursuant to Rules 59(e) and 60(b) . . . which sought
 3                reconsideration of the District Court's prior Opinion and Order dated
 4                May 30, 2017 ("the May 30, 2017 Order"). Upon reconsideration of
 5                its May 30, 2017 Order, which had granted a motion to dismiss
 6                pursuant to Rule 12(b)(6) by defendant TOWN OF OYSTER BAY
 7                ("TOBAY") and resulted in the entry of a final judgment in favor
 8                of defendant on June 2, 2017, the District Court vacated certain
 9                findings but otherwise adhered to its original determination of the
10                May 30, 2017 Order. The District Court also denied the branches
11                of plaintiff's motion seeking leave to file a second amended
12                complaint and other relief pursuant to FRCP Rule 60(b)(2).

13   (Notice of Appeal at 1-2 (emphases added).) Despite the Notice of Appeal's statement

14   that PHL had "sought reconsideration of the District Court's prior Opinion and Order

15   dated May 30, 2017"—as if it had sought reconsideration of the entire May 2017

16   decision—PHL had in fact stated that "[r]econsideration is not sought for th[e] Court's

17   dismissal of PHL's claims sounding in unjust enrichment (Count III) or negligent

18   misrepresentation (Counts VI, VII, and XI), which were dismissed on grounds other

19   than, or in addition to, those for which reconsideration is sought on this motion"

20   (PHL Memorandum in support of reconsideration and for leave to file a second

21   Amended Complaint at 2 n.1 (emphases added)). Accordingly, the district court's

22   2018 Order, after listing the claims PHL had asserted and stating that all had been

23   dismissed in its May 30, 2017 original decision and the June 2, 2017 final judgment,



                                               21
 1   see, D.Ct. 2018 Order at 1, noted that PHL had moved for "reconsideration of so much

 2   of the May Order as dismissed its breach of contract, fraud and innocent misrepresentation

 3   claims," id. at 2 (emphasis added). The court's 2018 Order did not further mention the

 4   claims of unjust enrichment or negligent misrepresentation. It neither granted nor

 5   denied reconsideration of those causes of action, given that reconsideration of those

 6   claims was explicitly not requested.

 7                While this case differs slightly from Shrader, in that the second paragraph

 8   of PHL's Notice of Appeal contained a mention of the May 30, 2017 Order and the

 9   final judgment, it did so only in stating that the district court's order on

10   reconsideration vacated certain findings but otherwise adhered to its original

11   determination. But neither the vacaturs nor the adherences involved the claims of

12   unjust enrichment or negligent misrepresentation, for they were not at issue in the

13   reconsideration motion.

14                PHL's Notice of Appeal could of course have, along with the

15   reconsideration order, designated the final judgment—or the parts of it that dismissed

16   the claims for unjust enrichment and negligent misrepresentation-—among the

17   decisions appealed from if PHL wished those dismissals reviewed. But it did not do

18   so; and as it had expressly eschewed reconsideration of those specific claims by the


                                                22
 1   district court, and its Notice of Appeal identified only the reconsideration order as the

 2   decision appealed from, nothing in the Notice of Appeal or in the events that

 3   preceded it suggested that PHL wished to challenge the dismissals of the claims for

 4   unjust enrichment and negligent misrepresentation in this Court.

 5                The fact that the Town, in addition to raising this jurisdictional issue,

 6   fully briefed the unjust enrichment and negligent misrepresentation claims indicates

 7   that the Town was not prejudiced by the fact that the Notice of Appeal was limited.

 8   But it does not persuade us that the notice identified the final judgment or the

 9   dismissals of those claims for appeal.

10                We conclude that PHL's arguments with regard to dismissals of the

11   unjust enrichment and negligent misrepresentation claims are not properly before us.

12   That said, we note that if they were properly before us, we would reject PHL's

13   arguments substantially for the reasons stated by the district court in dismissing those

14   claims, as well as for reasons discussed below that are applicable both to those

15   dismissals and to dismissals that are properly before us.




                                                23
 1   B. The Merits of the Dismissal

 2              Whether a complaint states a claim on which relief can be granted is a

 3   question of law, see, e.g., Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162,

 4   185 (2d Cir. 2012), cert. denied, 568 U.S. 1087 (2013); De Jesus v. Sears, Roebuck & Co., 87

 5   F.3d 65, 69 (2d Cir. 1996), which we consider de novo, see, e.g., Starr v. Sony BMG Music

 6   Entertainment, 592 F.3d 314, 321 (2d Cir. 2010) ("Starr"), cert. denied, 562 U.S. 1168

 7   (2011).

 8                In reviewing the sufficiency of a complaint, we accept only its
 9                factual allegations, and the reasonable inferences that can be
10                drawn therefrom, as true. See, e.g., Rothstein v. UBS AG, 708 F.3d
11                82, 94 (2d Cir. 2013). "[W]e 'are not bound to accept as true a legal
12                conclusion couched as a factual allegation,'" Ashcroft v. Iqbal, 556
13                U.S. 662, 678 . . . (2009) ("Iqbal") (quoting Bell Atlantic Corp. v.
14                Twombly, 550 U.S. 544, 555 . . . (2007) ("Twombly")); nor are we
15                required to accept as true allegations that are wholly conclusory,
16                see, e.g., Iqbal, 556 U.S. at 678-79, 681, 686 . . . .

17   Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014) ("Krys").

18                       "To survive a motion to dismiss, a complaint must contain
19                sufficient factual matter, accepted as true, to 'state a claim to relief
20                that is plausible on its face.'" Iqbal, 556 U.S. at 678 . . . (quoting
21                Twombly, 550 U.S. at 570).

22                      A claim has facial plausibility when the plaintiff pleads
23                factual content that allows the court to draw the reasonable
24                inference that the defendant is liable for the misconduct alleged.
25                [Twombly, 550 U.S.] at 556 . . . .

26   Krys, 749 F.3d at 128.

                                                 24
 1                In assessing plausibility, we consider not only the complaint's factual

 2   allegations but also the documents attached. See, e.g., Fed. R. Civ. P. 10(c) ("A copy

 3   of a written instrument that is an exhibit to a pleading is a part of the pleading for all

 4   purposes."); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002);

 5   Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).

 6                The Town Law of the State of New York, with respect to the "[a]ward . . .

 7   of town contracts," provides in pertinent part that a town "[m]ay award contracts for

 8   any of the purposes authorized by law . . . after approval by the town board." New York

 9   Town Law § 64(6) (McKinney 2005) (emphasis added). This provision has been in

10   existence since 1932. See id. Similar preconditions to the allocation or expenditure of

11   municipal moneys are imposed on other governmental subdivisions. See, e.g., N.Y.

12   County Law § 362(3) (McKinney 1952) ("No . . . contract which in any manner

13   involves the expenditure of money or the incurring of any pecuniary liability, shall

14   be made or entered . . . unless an amount has been appropriated . . . or has been

15   authorized to be borrowed pursuant to the local finance law."); id. § 360(2)

16   ("appropriation resolution" to be made by county's "board of supervisors"); N.Y.

17   Village Law §§ 4-412(1) and 4-412(11) (McKinney 2018) ("the board of trustees of a village

18   shall have management of village property and finances," and "may create . . . by resolution


                                                 25
 1   offices, boards, agencies and commissions and delegate [to them] so much of its

 2   powers, duties and functions as it shall deem necessary for effectuating or

 3   administering the board of trustees duties and functions"; such an "officer, board or

 4   agency . . . shall let all contracts for public work and all purchase contracts to the lowest

 5   responsible bidder after advertisement for bids where so required by section one hundred three

 6   of the general municipal law" (emphases added)); id. § 4-400(1)(k) ("It shall be the

 7   responsibility of the mayor" of a village "to sign checks in the absence or inability of

 8   the treasurer or deputy treasurer, if any, when authorized by the board of trustees by

 9   resolution"). The purpose of such statutes is "to guard against extravagance and

10   collusion on the part of public officials," Corning v. Village of Laurel Hollow, 48 N.Y.2d

11   348, 351-52, 422 N.Y.S.2d 932, 934 (1979), i.e., "to protect the public from governmental

12   misconduct or improvidence," Parsa v. State, 64 N.Y.2d 143, 147, 485 N.Y.S.2d 27, 29

13   (1984) ("Parsa"),

14                 to insure official care and deliberation, and to hold the agents of
15                 the public to personal responsibility for expenditure; and they are
16                 a limit upon the powers of the corporation, inasmuch as they
17                 prescribe an exact mode for the exercise of the power of
18                 expenditure.

19   McDonald v. Mayor, 68 N.Y. 23, 26-27 (1876) ("McDonald"). And they are stringently

20   enforced.


                                                  26
 1                "Municipal contracts which violate express statutory provisions are

 2   invalid." Granada Buildings, Inc. v. City of Kingston, 58 N.Y.2d 705, 708, 458 N.Y.S.2d

 3   906, 907 (1982) ("Granada"); see, e.g., New York Telephone Co. v. Town of North Hempstead,

 4   41 N.Y.2d 691, 691-92, 395 N.Y.S.2d 143, 146 (1977) ("New York Telephone") (where the

 5   defendant town attached lighting fixtures to the plaintiff telephone company's poles

 6   while unsuccessfully negotiating for the right to rent such space, and there was no

 7   indication "of the performance of any of the formal prerequisites to the execution of

 8   a valid contract on the part of the town," the telephone company, while entitled to an

 9   order requiring the town to remove the lights, had no right to recover rent); Seif v.

10   City of Long Beach, 286 N.Y. 382, 385, 36 N.E.2d 630, 631 (1941) ("Seif") (reinstating

11   judgment dismissing claim for the reasonable value of services rendered to the city

12   by an attorney at the instance of the Mayor, because "[o]nly the City Council ha[d]

13   power to . . . authorize the employment of special counsel to represent the city," and

14   the City Council had not done so); Lutzken v. City of Rochester, 7 A.D.2d 498, 501, 184

15   N.Y.S.2d 483, 487 (4th Dep't 1959) ("It is established law in this State that where there

16   is a lack of authority on the part of agents of a municipal corporation to create a

17   liability, except by compliance with well-established regulations, no liability can result

18   unless the prescribed procedure is complied with and followed." (emphasis added)); Mans


                                                27
 1   Construction Oversite, Ltd. v. City of Peekskill, 114 A.D.3d 911, 912, 980 N.Y.S.2d 822, 823

 2   (2d Dep't 2014) ("Mans") ("A municipal contract which does not comply with statutory

 3   requirements or local law is invalid and unenforceable" (internal quotation marks

 4   omitted (emphasis ours)); Verifacts Group, Inc. v. Town of Babylon, 267 A.D.2d 379, 379

 5   (2d Dep't 1999) ("Town Law § 64 (6) demands that a formal resolution be passed by

 6   the Town Board"—approv[ing] the contract at issue"—before a Town can be bound by

 7   [the] contract. Absent strict compliance with the formal requirements of this statute,

 8   no valid contract binding a Town may be found to exist." (emphases added)); see also Parsa,

 9   64 N.Y.2d at 147, 485 N.Y.S.2d at 29 (where the "Legislature ha[d] specified that

10   contracts exceeding $5,000 shall not be effective unless first approved by the State

11   Comptroller," and the plaintiff's $145,000 contract was "no[t] approved by the

12   Comptroller, the plaintiff may not maintain an action on it").

13                Moreover, except in very limited circumstances that are not present here,

14   if the express statutory constraints have not been complied with, the plaintiff cannot

15   recover on a theory of implied contract.

16                Even though a promise to pay may be spelled out from the
17                parties' conduct, a contract between them may not be implied to
18                provide "rough justice" and fasten liability on the State when
19                applicable statutes expressly prohibit it (see Lutzken v. City of
20                Rochester, 7 A.D.2d 498, 184 N.Y.S.2d 483).

21   Parsa, 64 N.Y.2d at 147, 485 N.Y.S.2d at 29.

                                                 28
 1                 "Where the Legislature provides that valid contracts may be made only
 2                 by specified officers or boards and in specified manner, no implied
 3                 contract to pay for benefits furnished by a person under an
 4                 agreement which is invalid because it fails to comply with
 5                 statutory restrictions and inhibitions can create an obligation or
 6                 liability of the city."

 7   New York Telephone, 41 N.Y.2d at 696, 395 N.Y.S.2d at 146 (quoting Seif, 286 N.Y.

 8   at 387, 36 N.E.2d at 632 (emphases ours)).

 9                 The creation of an obligation against the town, by way of contract,
10                 cannot be founded upon omission of action by the town officials, but
11                 must be the result of an affirmative determination to create the
12                 obligation in the form and manner provided by statute.

13   New York Telephone, 41 N.Y.2d at 696, 395 N.Y.S.2d at 146 (internal quotation marks

14   omitted (emphasis in New York Telephone)); see, e.g., McDonald, 68 N.Y. at 28 (where

15   "there is an express legislative inhibition upon the city, that it may not incur liability

16   unless by writing and by record[, h]ow can it be said that a municipality is liable upon an

17   implied promise, when the very statute which . . . prescribes the mode of the exercise of [its

18   powers], says, that it shall not, and hence cannot, become liable, save by express promise? . . .

19   [A]s we have already said, . . . if the charter imposes restrictions upon the manner of

20   contracting, they must be observed." (emphases added)).

21                 Nor, when the statutory prerequisites have not been met, can the

22   municipality be held liable on a theory of unjust enrichment or estoppel, see, e.g.,

                                                    29
 1   Granada, 58 N.Y.2d at 708, 458 N.Y.S.2d at 907 ("we have frequently reiterated that

 2   estoppel is unavailable against a public agency"); Mans, 114 A.D.3d at 912, 980

 3   N.Y.S.2d at 823 ("The mere acceptance of benefits does not estop the municipality

 4   from denying liability for payment for services rendered, where a contract was

 5   neither validly entered into nor ratified [citing Parsa and Seif]"); Seif, 286 N.Y.

 6   at 387-388 ("this court has given emphatic warning that equitable powers of the courts

 7   may not be invoked to sanction disregard of statutory safeguards and restrictions").

 8                PHL's reliance on Aniero Concrete Co. v. New York City Construction

 9   Authority, 94-cv-3506, 2000 WL 863208 (S.D.N.Y. 2000) ("Aniero"), Vrooman v. Village

10   of Middleville, 91 A.D.2d 833, 458 N.Y.S.2d 424 (4th Dep't 1982) ("Vrooman"), and Gerzof

11   v. Sweeney, 22 N.Y.2d 297, 292 N.Y.S.2d 640 (2013) ("Gerzof"), in urging us to deviate

12   from the above general principles in order to allow PHL to enforce the invalid SACA,

13   is misplaced, for none of the circumstances of those cases are even remotely similar

14   to those here. In Aniero, a private company was taking over for another party

15   midstream in an ongoing municipal contract that had been properly approved. See

16   2000 WL 863208, at *1. In Vrooman, the village similarly was not free to elect not to

17   contract for the services in question, for although it had not made the statutorily

18   required appropriation to fund the work performed by the plaintiff, it in fact had no


                                               30
 1   choice but to have the work performed because it had been ordered by the State to

 2   have it done. See 91 A.D.2d at 834-35, 458 N.Y.S.2d at 426. And in Gerzof, the village's

 3   governing body had collaborated with a manufacturer on "unlawful manipulation[s]

 4   in preparing and submitting . . . specifications," thus rendering the contract illegal, 22

 5   N.Y.2d at 303, 292 N.Y.S.2d at 643 (internal quotation marks omitted), and the village

 6   had thereby acquired an expensive generator in circumvention of statutory provisions

 7   that required competitive bidding and an award to the low bidder, see id. at 302, 292

 8   N.Y.S.2d at 642. In the present case, the Town and SRB had an ongoing contractual

 9   relationship; the Town had no obligation, contractual or regulatory, to assist SRB in

10   obtaining financing; and there is no plausible suggestion that the Town received in

11   the SACA anything more than what it was already entitled to from SRB under

12   contracts previously approved by Board resolutions: The Amended Complaint

13   alleges that the improvements for which SRB sought financing were "the

14   improvements required by the terms of [the 2008 Agreement]" (Amended Complaint

15   ¶ 22).

16                PHL, on the other hand, sought a benefit in the form of the Town's

17   guarantee of SRB's loan, which was in no way required, and which may well have

18   been constitutionally prohibited, see N.Y. State Const. Art. VIII. § 1 (prohibiting a


                                                31
 1   town from "giv[ing] or loan[ing] its credit to or in aid of any individual, or public or

 2   private corporation or association, or private undertaking"). And PHL's devised

 3   "vehicle"—to get around the likely constitutional prohibition—reversed the Town's

 4   fortunes by imposing a new and unfathomable obligation whereby if the Town

 5   terminated the Concession Agreement because SRB—even if still making loan

 6   payments to PHL—failed to make concession payments to the Town, the Town would

 7   be required to make payments to PHL.

 8                 Thus, PHL's pleading does not suggest any plausible justification for

 9   deviating from the general principle that a municipal contract entered into without

10   compliance with the statutory requirements is unenforceable. The strict prerequisites

11   are imposed not only to "insure official care and deliberation, and limit . . . the powers

12   of the corporation," McDonald, 68 N.Y. at 26-27, but also to impose "a restraint . . . upon

13   other persons as well. They put upon all who would deal with the city, the need of first looking

14   for the authority of the agent with whom they bargain," id. (emphases added). Thus, "[i]t

15   is fundamental, that those seeking to deal with a municipal corporation through its

16   officials, must take great care to learn the nature and extent of their power and

17   authority." Id.




                                                   32
 1                 A party contracting with a municipality is chargeable with
 2                 knowledge of the statutes which regulate its contracting powers
 3                 and is bound by them (see Parsa v State of New York, 64 NY2d 143,
 4                 147 [1984]).

 5   Mans, 114 A.D.3d at 912, 980 N.Y.S.2d at 823. New York law thus "place[s] the risk

 6   of loss on parties dealing with municipal corporations," City of Zanesville v. Mohawk

 7   Data Sciences Corp., 97 A.D.2d 64, 66, 468 N.Y.S.2d 271, 273 (4th Dep't 1983)

 8   ("Zanesville"):

 9                 Those dealing with officers or agents of municipal corporations
10                 . . . have no right to presume that the persons with whom they are
11                 dealing are acting within the line of their authority (McDonald v
12                 Mayor of City of N.Y., 68 NY 23, 27). Since the authority of such
13                 officers and agents is a matter of public record, there is a conclusive
14                 presumption that persons dealing with them know the extent of their
15                 authority.

16   Zanesville, 97 A.D.2d at 66, 468 N.Y.S.2d at 273 (emphasis added). "Although

17   application of this rule results in occasional hardship," it is appropriate that "the loss

18   should be ascribed to the negligence of the person who failed to ascertain the authority vested

19   in the public agency with whom he dealt and statutes designed to protect the public should not

20   be annulled for his benefit." Id. at 67, 468 N.Y.S.2d at 273 (internal quotation marks

21   omitted) (emphases ours).

22                 Common sense dictates this course of action since statutory
23                 requirements could otherwise be nullified at the will of public

                                                   33
 1                officials to the detriment of the taxpaying public, and funds
 2                derived from public taxation could be subjected to waste and
 3                dissipation.
 4   Id.
 5                The result may seem unjust but any other rule would completely
 6                frustrate statutes designed to protect the public from
 7                governmental misconduct or improvidence. The contractor's option
 8                is to withhold his services unless an agreement is executed and approved
 9                as the statutes require.

10   Parsa, 64 N.Y.2d at 147, 485 N.Y.S.2d at 29 (emphasis added).

11                In light of these long-established principles, as recognized by the district

12   court, PHL's Amended Complaint failed to state a claim on which relief can be

13   granted for breach of contract or equitable relief because it failed to allege plausibly

14   that the SACA, of which PHL claims to be a third-party beneficiary, was approved

15   by the Town Board. It failed as a matter of law to allege a valid contract.

16                Although PHL contends that the district court overlooked allegations of

17   the Amended Complaint that PHL argues were sufficient to show that there had been

18   Board approval of the SACA, we see no such plausible allegations. There is no direct

19   allegation of a Board resolution approving the SACA. Nor is there any plausible

20   suggestion that the SACA was approved in 2010 by Resolution No. 256-2010 or

21   Resolution No. 605-2010, which were adopted some 20 and 17 months, respectively,

22   before the November 2011 SACA. The former authorized and directed the Town


                                                 34
 1   Supervisor to enter into agreements with SRB regarding the use of loan proceeds for

 2   improvements at the Facilities "subject to the negotiation of acceptable terms in said

 3   agreements," Town Resolution No. 256-2010 (emphasis added); the latter authorized

 4   the Town Supervisor to execute amendments to the three prior SRB contracts "in

 5   order to facilitate the concessionaires' [sic] ability to obtain financing to make capital

 6   improvements to the facilities," Town Resolution No. 605-2010 (emphasis added); neither

 7   of these 2010 resolutions mentioned the then-nonexistent SACA, involving a then-

 8   unknown lender, and unknown terms.

 9                Further, PHL's argument that it "alleged . . . an enforceable contract"

10   (PHL brief on appeal at 30) because the Amended Complaint alleged there was

11   "[p]roper authorization by [the Town] for execution of . . . amendments" to the

12   Concession Agreement (id. at 31), is meritless since that allegation is entirely

13   conclusory. Nor is the plausibility of Board approval indicated by the statements in

14   the SACA or in the opinion letters PHL received from the Town's attorneys that the

15   SACA had been "duly authorized by all necessary action" and that the SACA was a

16   "valid binding obligation" of the Town (Amended Complaint page 13, ¶ 38; id. page

17   15, ¶ 38). The representation that a document constitutes a "valid binding obligation"

18   is a legal opinion rather than a statement of fact. The assertion that a proposed


                                                35
 1   agreement has been "duly authorized by all necessary action" is, given the word

 2   "duly," similarly a legal opinion; and with or without that adverb, it is entirely

 3   conclusory, devoid of any statement of fact. In assessing the sufficiency of a

 4   complaint to state a claim, we are not required to accept such legal and/or conclusory

 5   allegations as true.

 6                Finally, the SACA itself and each of the opinion letters on which PHL

 7   relies—all of which are exhibits attached to the Amended Complaint—raised a red

 8   flag as to the fact that there had not been a Board resolution approving the SACA.

 9   The first three "WHEREAS" clauses of the SACA itself recited that the prior three

10   agreements between the Town and SRB had been authorized by specifically identified

11   Town Board resolutions: the October 30, 2000 "Concession agreement" "by Resolution

12   No. 638-2000 adopted on October 3, 2000," the 2005 Amendment "by Resolution No.

13   313-2005, adopted on April 19, 2005," and the 2008 Agreement "by Resolution No.

14   889-2008, adopted on September 16, 2008." (Amended Complaint Exhibit F, at 1.)

15   And the opinion letters attached to the Amended Complaint likewise recited that the

16   Concession Agreement, the 2005 Amendment, and the 2008 Agreement had been

17   authorized by those specifically identified Town Board resolutions (see Amended

18   Complaint Exhibits I and K). The fact that all three of these documents, sent to PHL


                                              36
 1   in direct response to its request for information as to the SACA, were so explicit with

 2   respect to Board resolutions authorizing the contracts between the Town and SRB in

 3   earlier years and yet contained no statement of fact as to any Board resolution with

 4   respect to the SACA in 2011, strongly indicated that there was no SACA-authorizing

 5   resolution that could be cited, and thus negates PHL's contention that the Amended

 6   Complaint plausibly alleged Board authorization for the SACA.

 7                These features of the Amended Complaint and its exhibits also

 8   warranted dismissal of PHL's claims for misrepresentation. In order to state a claim

 9   under New York law for any level of actionable misrepresentation, a plaintiff must

10   allege, inter alia, that it reasonably or justifiably relied on the misrepresentation. See,

11   e.g., Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 114 (2d. Cir 2012) (reasonable

12   reliance for negligent misrepresentation); Ambac Assurance Corp. v. Countrywide Home

13   Loans, Inc., 31 N.Y.3d 569, 584, 81 N.Y.S.3d 816, 826 (2018) (justifiable reliance for

14   fraud); West Side Federal Savings & Loan Ass'n of New York City v. Hirschfeld, 101 A.D.2d

15   380, 385, 476 N.Y.S.2d 292, 295 (1st Dep't 1984) (same for innocent misrepresentation);

16   see also Crigger v. Fahnestock & Co., 443 F.3d 230, 235 (2d Cir. 2006) (New York courts

17   are "particularly disinclined to entertain claims of justifiable reliance" where the




                                                 37
 1   plaintiff is a sophisticated party such as "businessmen engaged in major transactions"

 2   (internal quotations omitted)).

 3                PHL, in negotiating for a contract that would entitle it to moneys from

 4   the Town, is presumed to have known that, by law, for such an agreement by the

 5   Town to be valid, it would need authorization by the Board. And, in that effort, PHL

 6   was represented by counsel. (See Amended Complaint ¶ 28.) Given that when PHL

 7   requested information as to the SACA, it received documents that meticulously cited

 8   Board authorizations for prior SRB contracts but that made no mention of Board

 9   action with respect to the SACA, and that suggested the existence of SACA

10   authorization only in conclusory terms, the Amended Complaint failed to assert any

11   plausible claims for misrepresentation.




12   C. The Denial of Leave To Amend

13                Finally, we see no merit in PHL's contention that it should have been

14   allowed to file a second amended complaint to allege, principally, a 2014 Board

15   ratification of the SACA. Denial of a motion for leave to file an amended pleading is

16   reviewed for abuse of discretion, see, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962);

17   Starr, 592 F.3d at 321, and we see no such abuse here. The proffered 2014 resolution


                                               38
1   relied on by PHL—while making reference to the resolutions adopted with respect

2   to the 2000 Concession Agreement, the 2005 Amendment, and the 2008

3   Agreement—did not, as the district court noted, either mention the SACA or provide

4   any indication that the Board even had knowledge of the SACA. We see no abuse of

5   discretion in the denial of leave to amend.




6                                     CONCLUSION




7               We have considered all of PHL's arguments on this appeal and have

8   found them to be without merit. The order of the district court is affirmed.




                                             39
