Full opinion text
ORDER RICHARD J. ARCARA, District Judge. The above-referenced case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(B). On June 4, 2012, Magistrate Judge Foschio filed a Report and Recommendation, recommending that third-party defendants John Giardino and Adam Greenberger’s motion to dismiss be granted. The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Foschio’s Report and Recommendation, third-party defendants John Giardino and Adam Greenberger’s motion to dismiss is granted. The case is referred back to Magistrate Judge Foschio for further proceedings. SO ORDERED. REPORT and RECOMMENDATION LESLIE G. FOSCHIO, United States Magistrate Judge. JURISDICTION This matter was referred to the undersigned for all pretrial matters by order of Hon. Richard J. Arcara on December 13, 2010 (Doc. No. 31). It is now before the court on Third-Party Defendants’ Motion to Dismiss filed October 4, 2011 (Doc. No. 119). BACKGROUND This action was initially commenced on September 1, 2010 by Plaintiffs subsidiary MarCone APW, LLC (“Mar-Cone APW”) in the Eastern District of Missouri (St. Louis) alleging inter alia breach of contract and fiduciary duty against Defendant Michael Mangan (“Mangan”) and tortious interference, unfair competition and conversion claims against Mangan and the Servall Company (“Servall”). The case was transferred to this district on December 10, 2010, for lack of personal jurisdiction over Mangan and improper venue (Doc. No. 27). Plaintiffs motion for leave to file a second amended complaint was granted by Decision and Order filed April 28, 2011 (Doc. No. 59). On April 29, 2011, Plaintiff filed its Second Amended Complaint (“Second Amended Complaint”) (Doc. No. 60) alleging several state law claims against Mangan, specifically breaches of (1) an employment agreement (“Plaintiffs First Claim”), (2) a non-disclosure agreement (“Plaintiffs Second Claim”), (3) the implied covenant against solicitation of former customers under the so-called Mohawk Doctrine (“Plaintiffs Third Claim” or “Mar-Cone’s Mohawk Doctrine Claim”), and (4) Mangan’s fiduciary duty of loyalty to Plaintiff (“Plaintiffs Fourth Claim”). Plaintiff also alleges a tortious interference claim against Servall (“Plaintiffs Fifth Claim”). Following filing, on May 15, 2011 (Doc. No. 65), of an answer to the Second Amended Complaint with counterclaims Mangan moved as required by Fed. R.Civ.P. 14(a), on June 7, 2011, for leave to serve a Third-Party Complaint (Doc. No. 69), which was granted on August 9, 2011 (Doc. No. 102). Mangan’s Third-Party Complaint was filed on August 11, 2011 (Doc. No. 105) (“Third-Party Complaint”) against Third-Party Defendants John Giardino (“Giardino”) and Adam Greenberger (“Greenberger”) (together “Third-Party Defendants”). In the Third-Party Complaint Mangan sought indemnification and contribution from Third-Party Defendants for any damages awarded to Plaintiff under Plaintiffs Third Claim, along with Mangan’s costs of defense, including attorneys fees, based on Third-Party Defendants’ breach of fiduciary duty (“Mangan’s First Claim for Relief’) and from Third-Party Defendant Greenberger based on Greenberger’s false representation (“Mangan’s Second Claim for Relief’ together “Mangan’s Contribution Claims”). By papers filed October 4, 2011, Third-Party Defendants moved, in lieu of answer, pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 12(c), to dismiss the Third-Party Complaint (Doc. No. 119) (“Third-Party Defendants’ motion”). At the same time, Third-Party Defendants filed the Declaration of Edward Fogarty, Jr. in Support of Motion to Dismiss Third-Party Complaint (“Fogarty Declaration”) (Doc. No. 120) together with Exhibits A-H (“Fogarty Declaration Exh(s). _”) and a Memorandum of Law in Support of Motion to Dismiss Third-Party Complaint (Doc. No. 121) (“Third-Party Defendants’ Memorandum”). On November 4, 2011, in opposition to the Third-Party Defendants’ motion, Mangan filed the Affidavit of Patricia Gillen (Doc. No. 126) (“Gillen Affidavit”) and the Affidavit of Michael G. Mangan (“Mangan Affidavit”) (Doc. No. 126-1) together with Exhibits A-D (“Mangan Affidavit Exh(s). _”) and Defendant and Third-Party Plaintiff Michael Mangan’s Memorandum of Law (Doc. No. 126-2) (“Third-Party Plaintiffs Memorandum”). On November 15, 2011, Third-Party Defendants filed their Reply Brief in Opposition to Motion to Dismiss Third-Party Complaint (Doc. No. 129) (“Third-Party Defendants’ Reply”). At the court’s request, (Doc. No. 141), Mar-Cone submitted, on May 30, 2012, an explanation of its claims pending against Mangan in this court, and those pending against Mangan in New York Supreme Court, Erie County (Doc. No. 142). On May 31, 2012, Third-Party Plaintiff filed a reply to Mar-Cone’s submission (Doc. No. 143). Oral argument was deemed unnecessary. Based on the following, Third-Party Defendants’ motion should be GRANTED. FACTS A.P. Wagner, Inc. (“APW”), based in Depew, New York, was a major supplier of appliance replacement parts to wholesalers located in the Northeast region of the United States. Second Amended Complaint ¶ 8. Mangan joined APW in 1990, becoming executive vice-president in 2006 and later its president. Id. ¶ 10; Mangan Affidavit I ¶¶ 2-3. In June 2006, APW was acquired by APW Holding, Inc. (“APW Holding”), a Delaware corporation of which Giardino and Greenberger were majority shareholders, at which time Mangan received 75 shares of APW Holding constituting 1.709% of this company’s stock. Mangan Affidavit II ¶¶ 4, 6; Third-Party Complaint ¶¶ 20-21; Fogarty Declaration Exh. E ¶ 1 (Subscription Agreement for Non-Voting Common Stock of APW Holding, Inc. (“Subscription Agreement”)). Several other APW employees also received shares in APW Holding at this time. Mangan Affidavit II ¶ 7. Third-Party Defendants owned the balance of the shares of APW Holding. Third-Party Complaint ¶ 20. Under a stockholders’ agreement, executed by Mangan in July 2006, Mangan, as a minority shareholder in APW Holding, lacked voting rights and was required to sell his shares to APW Holding in the event the company was sold. Fogarty Declaration Exh. E ¶¶8-10 (“Stockholder’s Agreement”); Mangan Affidavit ¶8 (acknowledging Mangan was subject to “drag along” rights to receive payment for his shares in the event majority shareholders exercised their sole authority to sell company). In June 2006, Mangan and APW entered into an employment agreement which provided for Mangan’s at will termination upon six-months notice and termination for cause upon five-days notice. Fogarty Declaration Exh. G (“Employment Agreement”) ¶¶ 1.1-1.2; 2; 3. In the event of Mangan’s termination of employment with APW, APW had the right to immediately repurchase any shares in APW then owned by Mangan. Third-Party Complaint ¶ 24; Mangan Affidavit ¶ ¶ 9 n. 1, 21; Mangan Affidavit Exh. B, Employment Agreement Revised 2/14/2007 (“Revised Employment Agreement”) ¶ 2.6. Mangan was granted severance pay for six months of his salary if terminated without cause, Revised Employment Agreement ¶ 3(d); a provision in the agreement required Mangan not to compete with APW for two years following termination for cause; however, in the event of a termination without cause, Mangan’s non-competition period was reduced to one-year. Id. ¶ 4. The agreement additionally required Mangan not to disclose APW’s confidential and proprietary information, including customer information. Id. ¶ 5. Mar-Cone is also a major distributor of appliance replacement parts headquartered in St. Louis, Missouri. Second Amended Complaint ¶ 1. Servall, headquartered in Michigan, is one of Mar-Cone’s prime competitors. Id. ¶ 9. In January 2010, Mar-Cone acquired all of the assets of APW Holding particularly APW and its customer lists and goodwill. Id. ¶ 11; Mangan Affidavit I ¶ 4. At the time of the acquisition, Mangan was president of APW. Mangan Affidavit ¶¶ 4, 7. In connection with Mar-Cone’s asset purchase of APW, Mangan signed, on December 30, 2009, a Non-Disclosure Agreement with Mar-Cone APW,' LLC as a shareholder of APW Holding, Fogarty Declaration Exh. F (“Non-Disclosure Agreement”), which required Mangan to maintain as confidential Mar-Cone’s proprietary information including APW’s customer lists and prospective customer information acquired by Mar-Cone through its purchase of APW Holding’s assets pursuant to a purchase agreement between Mar-Cone APW LLC and APW Holding (“the Purchase Agreement”). As a selling shareholder of APW Holding, Mangan received payment for the value of his ownership interest in APW Holding and APW. Second Amended Complaint ¶ 18; Mangan Affidavit ¶ 21; Non-Disclosure Agreement at 1, ¶ D. Thereafter, Mangan was employed by Mar-Cone at the APW facilities in this district as a senior manager. Second Amended Complaint ¶ 14. After terminating his employment with APW in March 2012, Mangan commenced employment with Servall in July 2010 in this district and New Jersey in competition with Mar-Cone. Second Amended Complaint ¶¶ 24-25, Mangan Affidavit I ¶¶ 12, 17. Giardino and Greenberger became principal shareholders of APW Holding and APW in 2006, and allowed Mangan to acquire, pursuant to a stockholders agreement, a 1.8% stock ownership interest in APW at that time. Third-Party Complaint ¶¶ 19-23. According to the Third-Party Complaint, beginning in October 2009, Mangan learned that APW was to be sold to Mar-Cone and that Giardino and Greenberger directed other APW employees not to discuss the prospective sale with Mangan. Id. ¶¶ 28-29. Mangan was informed by Giardino and Greenberger that his opinions regarding the sale would not be considered, and Mangan was not given notice of any shareholders vote on the sale. Id. ¶¶ 30-31. Mangan alleges that pursuant to the New York Business Corporation Law, Mangan, as a minority non-voting shareholder, was required to be given notice of any vote to sell the assets of APW and that as majority shareholders Giardino and Greenberger had a “fiduciary duty” to inform Mangan an asset sale of APW was being considered. Id. ¶¶ 32-33. Mangan also alleges that Greenberger advised him in December 2009 the APW sale was to be a “stock sale” such that had Mangan been correctly informed of the asset nature of the sale, Mangan would have terminated his employment with APW prior to the sale and sold his shares to APW or Giardino and Greenberger at a fair price and thereby avoid being subject to the Mohawk Doctrine following the sale of APW to Mar-Cone. Id. ¶ 36. Mangan further alleges that had he known the APW sale was to be an asset sale, he could have, under the New York Business Corporation Law, objected to the sale and elected to require APW to repurchase his shares, again avoiding Mohawk Doctrine restrictions. Id. ¶ 37. Based on these allegations, Mangan asserts Giardino and Greenberger breached their “fiduciary duties” to Mangan rendering them subject to contribution for any damages imposed on Mangan under Mar-Cone’s Mohawk Doctrine claim against Mangan. Id. ¶ 40. For a second contribution claim, Mangan alleges Greenberger’s misrepresentation regarding the stock nature of the expected APW sale was false and material which induced Mangan into a belief his employment with Mar-Cone was secure, and that he had no right to demand APW to “repurchase his shares prior to the sale of APW to Mar-Cone.” Id. ¶¶ 43-44. According the Mangan, his reliance on Greenberger’s misrepresentation was justifiable and Greenberger therefore is subject to a claim for contribution in the event Mangan is held liable to Mar-Cone for violation of Mar-Cone’s rights under the Mohawk Doctrine. Id. ¶¶ 45-46. DISCUSSION 1. Jurisdiction. Although Third-Party Defendants moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction, Doc. No. 119, Third-Party Defendants have not specifically briefed the issue. However, even if Third-Party Defendants may be found to have thereby abandoned any challenge to the court’s subject matter jurisdiction over the Third-Party Complaint, having had its attention directed to the question, the court is required to satisfy itself that subject matter jurisdiction exists over Mangan’s Contribution Claims. See Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1421 (2d Cir.1997) (addressing subject matter jurisdiction raised by plaintiff in moving to remand case for lack of subject matter jurisdiction despite plaintiffs • abandonment of remand motion, because court is bound to consider jurisdictional challenge raised at any stage of proceedings and may raise question sua sponte (citing United Food & Commercial Workers Union, Local 919 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994))). Third-party claims, including as in this case, for contribution, brought pursuant to Fed.R.Civ.P. 14(a), require a basis for the exercise of subject matter jurisdiction by a district court. Steven BaickerMcKee, William M. Jenssen, John B. Carr, Federal Civil Rules Handbook (West-Thomson Reuters 2012) at 535. Here, as Mangan and Third-Party Defendants are all domiciled in New York, no basis for diversity jurisdiction under 28 U.S.C. § 1332 for Mangan’s Contribution Claims exists. Nor, as Mangan’s Contribution Claims are founded on N.Y. C.P.L.R. § 1401 (“§ 1401”) do they constitute claims arising under federal law creating federal claim subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Accordingly, as Mangan asserts, Third-Party Complaint ¶ 14 (court “has ancillary jurisdiction over” third-party complaint), subject matter jurisdiction for Mangan’s Contribution Claims must be based upon the court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). See Grimes v. Mazda North American Operations, 355 F.3d 566, 573 (6th Cir.2004). “Third-party claims by defendants for contribution against a third-party under Federal Rules of Civil Procedures 14(a) generally ... fall within the court’s supplemental jurisdiction if the impleaded defendant’s actions share a ‘common nucleus of operative fact’ with the case already before the court.” Grimes, 355 F.3d at 572; Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 811 (2d Cir.1979) (subject matter jurisdiction over contribution claims based on professional negligence available under court’s ancillary jurisdiction arising out of same transaction as alleged in complaint asserting securities fraud where third-party defendant was alleged to have assisted in preparation of materially false registration statement upon which plaintiffs claims against defendant were based). See also Metro Foundation Contractors, Inc. v. Arch Ins. Co., 2011 WL 2150466, *4 (S.D.N.Y. May 31, 2011) (absent diversity of citizenship between plaintiff and third-party defendant subject matter jurisdiction over third-party defendant’s cross-claim against plaintiff must be exercised under court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a)): Joining a third-party defendant non-diverse to plaintiff in the underlying action based on diversity of plaintiff and defendant does not destroy subject matter jurisdiction grounded on the court’s diversity jurisdiction over plaintiffs claim. See Spring City Corporation v. American Buildings Company, 193 F.3d 165, 169 (3rd Cir.1999) (presence of third-party defendant non-diverse to plaintiff and third-party plaintiff does not destroy subject matter jurisdiction over plaintiffs claim); Metro Foundation Contractors, Inc., 2011 WL 2150466, *4 (limitations of 28 U.S.C. § 1367(b) applicable only to claims by plaintiff against third-party defendant). The court therefore considers whether Mangan’s Contribution Claims satisfy the requirement of § 1367(a) in that they are “so related” to Mar-Cone’s claims -against Mangan based on diversity, particularly Mar-Cone’s Mohawk Doctrine claim, that both Mangan’s Contribution Claims, “form part of the same case or controversy.” 28 U.S.C. § 1367(a). Mangan’s Contributions Claims meet this criterion for supplemental jurisdiction if they share or arise from the same or a “common nucleus of operative fact” with Mar-Cone’s claims. See Shahriar v. Smith & Wollensky Restaurant Group, Inc., 659 F.3d 234, 245 (2d Cir.2011) (“For purposes of Section 1367(a), claims ‘form part of the same case or controversy’ if they ‘derive from a common nucleus of operative fact.’ ” (quoting Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir.2004))); Grimes, 355 F.3d at 572 (same). If the third-party claim meets this criterion the court must exercise subject matter over the claim. See Metro Foundation Contractors, Inc., 2011 WL 2150466, at *5 (finding plaintiffs claim for payment against defendant for performance bond and third-party defendant’s breach of contract cross-claim against plaintiff arise out of same construction contract dispute between general contractor plaintiff and subcontractor third-party defendant and cross-claimant (citing Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir.1998))). The court therefore turns to whether Mar-Cone’s Mohawk Doctrine Claim against Mangan based on the sale of APW’s good will to Mar-Cone, and Mangan’s Contribution Claims against Giardino and Greenberger are sufficiently related so as to arise out of same nucleus of operative fact and thus satisfy the same case and controversy requirement established by § 1367(a). As discussed, Discussion, infra, at 368-69, a diversion of business good will by a seller of a business is considered an actionable business tort under New York law. As alleged in the Third-Party Complaint, the sale of APW, including its customer good will, to Mar-Cone as an asset of APW Holding was accomplished without notice and the participation of Mangan as a part owner of APW through his minority shareholder position in APW Holding, an entity controlled by Giardino and Greenberger. Third-Party Complaint ¶¶ 21, 31, 33, 36. Mangan does not dispute that he received significant financial consideration for his shares as part of the asset sale transaction which resulted in the merger of APW’s assets including its good-will into Mar-Cone. Mangan’s Contribution Claims turn on the theory that Giardino and Greenberger violated certain legal duties owed Mangan under fiduciary obligations imposed by New York law upon majority shareholders intending to sell the assets of a closely-held corporation and that Greenberger committed a misrepresentation actionable under New York law. As a result, according to Mangan, had Giardino and Greenberger not violated such duties Mangan could have avoided any violation of the Mohawk Doctrine by disposing of his ownership in APW prior to its sale to Mar-Cone and therefore Giardino and Greenberger’s violations of such duties contributed to Mar-Cone’s damages sought against Mangan. The key fact common to both Mar-Cone’s Mohawk Doctrine claim and Mangan’s Contribution Claims is the sale of APW to Mar-Cone, a transaction that indisputably involved the transfer of the ownership interests of Mangan, Giardino and Greenberger in APW represented by their respective positions as minority and majority shareholders of APW Holding. While Giardino and Greenberger’s alleged misconduct as the basis for Mangan’s Contribution Claims is not directly relevant to the merits of Mar-Cone’s Mohawk Doctrine Claim against Mangan, absent the alleged transfer of APW’s good will by Giardino, Greenberger, and Mangan through the asset sale to Mar-Cone, Mangan’s Contribution Claims are drained of any merit. Also, unless Mar-Cone’s Mohawk Doctrine Claim against Mangan is sustained, Mangan’s Contribution Claims will fall as well. Thus, the court finds Mangan’s Contribution Claims to be “so related,” § 1367(a) to the underlying Mar-Cone Mohawk Doctrine Claim in this action as to arise from a “common nucleus of operative facts,” Shahriar, 659 F.3d at 245; Grimes, 355 F.3d at 572, involving the sale of APW to Mar-Cone sufficient to' sustain supplemental jurisdiction pursuant to § 1367(a). Nor should the court decline to exercise jurisdiction pursuant to 28 U.S.C. § 1367(c) (“§ 1367(c)”). Section 1367(c) authorizes the court to decline to exercise supplemental jurisdiction if the claim “raises a novel or complex issue of state law,” “substantially predominates over the claim or claims over which the district court has original jurisdiction,” the court “has dismissed all claims over which it has original jurisdiction,” or “in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). Here, although whether a violation of New York’s Mohawk Doctrine qualifies as tortious conduct as a prerequisite to support a potential contribution claim brought pursuant to §1401 may raise a question of. first impression under New York law, in light of the Second Circuit’s recent definitive statement that the doctrine is one sounding in New York tort law, Discussion, infra, at 369 (quoting Bessemer Trust Co., 618 F.3d 76, 80 (2d Cir.2010)), and as this court, unlike a New York State court, is bound by Second Circuit precedent on point, this threshold issue cannot be said to be “novel or complex,” § 1367(c)(1). Further, whether Mangan’s assertions of breach of a fiduciary duty, imposed by New York corporation law, by Giardino and Greenberger, APW Holding’s majority shareholders, as well as an actionable misrepresentation by Greenberger which Mangan asserts contributed to Mar-Cone’s damages attributable to Mangan’s Mohawk Doctrine violations may, for purposes of Third-Party Defendants’ motion, be deemed sufficiently plausible to state a claim under Rule 12(b)(6), involves the application of readily discernable provisions of the New York Business Corporation law and related caselaw and established New York caselaw defining a claim of misrepresentation. Discussion, infra, at 372-75. Accordingly, the court finds the validity of Mangan’s Contribution Claims do not raise “novel or complex” issues of state law requiring dismissal pursuant to § 1367(c). Nor do Mangan’s Contribution Claims predominate. Mar-Cone’s claims against Mangan raise several independent grounds for liability against Mangan for infringing Mar-Cone’s rights to APW’s good will and misuse of confidential information quite apart from, albeit related to, its Mohawk Doctrine Claim, as well as a separate and potentially significant tortious interference claim against Servall, an entity whose alleged misconduct is not, thus far, alleged to be directly related to Mar-Cone’s Mohawk Doctrine Claim against Mangan. Therefore, Mangan’s Contribution Claims hinge upon the merits of only one of several other substantive claims asserted by Mar-Cone against Mangan and Servall, all equally based, like the Mangan’s Contribution Claims, on New York law and therefore cannot be said to predominate over Mar-Cone’s other claims in this action. Nor has the court dismissed, or been requested to dismiss, such claims. Finally, although there are several related claims currently filed by Mar-Cone pending in New York Supreme Court, Erie County, there is no indication that such claims are duplicative of the claims in this instant action, or that to exercise jurisdiction over Mangan’s Contribution Claims would “ ‘frustrate judicial economy.’ ” Metro Foundation Contractors, Inc., 2011 WL 2150466, *5 (quoting SST Global Tech., LLC v. Chapman, 270 F.Supp.2d 444, 459 (S.D.N.Y.2003)). Relevantly, Mar-Cone’s Mohawk Doctrine claim is pleaded in this court only, and its other claims against Mangan, while related, do not directly duplicate or overlap Mar-Cone’s claims against Mangan in the state action (Doc. No. 142 at 3). Mangan does not dispute that Mar-Cone’s Mohawk Doctrine claim is not asserted in the state court action but notes that there is a degree of overlap between the two cases in the sense that the scope of available damages against Mangan may be similar to those sought by Mar-Cpne in the state action against Mangan and other defendants. Therefore, given the circumstances of this case, “it is not clear that judicial resources would be preserved by declining to exercise supplemental jurisdiction over the state [contribution] claim[s] in this case.” Id. (bracketed material added)., Accordingly, as none. of the exceptions provided in § 1367(c) apply to Mangan’s Contribution Claims, the court should not decline to exercise its supplemental jurisdiction over such claims. 2. Contentions of Parties. In this action, Mar-Cone alleges, inter alia, that as a result of Mar-Cone’s acquisition of APW’s assets, Mangan sold his ownership interest in APW - to Mar-Cone for substantial consideration. Second Amended Complaint ¶ 18. Mar-Cone further alleges that prior to the sale of APW’s assets to Mar-Cone, Mangan contacted Servall and proposed employment whereby Mangan would compete with Mar-Cone by soliciting APW’s customers. Id. ¶20. According to Mar-Cone, since commencing employment with Servall in July 2010, Mangan has actively solicited former APW customers on behalf of Servall using proprietary customer information acquired by MarCone from APW as part of the asset sale. Id. ¶¶ 24-25, 28. Mar-Cone also claims that Mangan, while employed by Mar-Cone, solicited Mar-Cone’s former APW employees to join Mangan in competing with Mar-Cone in violation of Mangan’s duty of loyalty to MarCone as president of APW under the Revised Employment Agreement, an asset of APW Holding acquired by Mar-Cone pursuant to the Purchase Agreement. Second Amended Complaint ¶ 37; NonDisclosure Agreement at 1, ¶ D. Mar-Cone claims Mangan’s alleged violations as of the date of the Second Amended Complaint amounted to at least, $17 million in lost profits, customers and good will. Second Amended Complaint ¶ 55. Based on his position as a minority nonvoting shareholder of APW Holding, Mangan maintains Mar-Cone’s Third Claim fails to state a claim in that the sale of his APW Holding shares to Mar-Cone APW LLC was involuntary, rendering the Mohawk Doctrine inapplicable to this transaction. Mangan Affidavit II ¶¶ 3^4; ¶ 11 (“the sale of APW’s assets was involuntary on my part”), ¶ 13 (“[the sale of APW] was not a voluntary decision on my part”), ¶ 14 (“involuntary sale [of good will] forced upon minority shareholder does not impose duty on that shareholder to refrain from soliciting former customers of selling company”). 3. Mangan’s Indemniñcation Claim. In the Third-Party Complaint, Mangan asserts liability against Third-Party Defendants based on indemnity and contribution in the event Mangan should be found liable to Mar-Cone under its Third Claim alleging Mangan’s liability to Plaintiff under the Mohawk Doctrine. Third Party Complaint ¶¶ 40, 46. However, as Mangan has, subsequent to Third-Party Defendants’ motion, withdrawn his claim based on indemnification,. Gillen Affidavit ¶ 4 (“Mangan concedes that he does not have a claim for indemnification”), the court’s consideration of Third-Party Defendants’ motion is limited to Mangan’s First and Second Claims based on contribution alone. 4. Choice of Law Applicable to Mangan’s Contribution Claims. Mangan maintains that New York law applies to whether Mangan’s Contribution Claims, as pleaded, are viable. Third-Party Plaintiffs Memorandum at 4-5; Gillen Affidavit ¶ 5(l)-(2). Specifically, Mangan contends his contribution claims against Giardino and Greenberger are predicated on New York law, specifically N.Y.C.P.L.R. § 1401 (“§ 1401”), as required under New York choice of law rules. Third-Party Plaintiffs Memorandum at 5 (citing O’Brien v. Marriot Int’l, Inc., 2006 WL 1806567, at **2-3 (E.D.N.Y. June 29, 2006) (claim for contribution is a “loss allocating rule requiring application of forum law”). Third-Party Defendants contend that under either New York or Delaware law, which Third-Party Defendants argue is applicable based on the fact that APW Holding is a Delaware corporation, Mangan may not maintain contribution claims against them as both state’s contribution law requires a third-party defendant must be shown to have breached a legally cognizable duty owed to plaintiff in the main underlying action and Mangan has failed to allege either Giardino or Greenberger owed or breached any such duty to Mar-Cone. Third-Party Defendants’ Memorandum at 13 (citing New York and Delaware caselaw). In addition to his reliance upon New York’s Business Corporation Law, Third-Party Complaint ¶¶ 32-33; 37, Mangan also asserts, in opposition to Third-Party Defendants’ motion, Third-Party Defendants’ breach of fiduciary corporate duties owed to him as a minority shareholder of APW Holding arise under Delaware law. Gillen Affidavit ¶ 5(3). Further, Third-Party Defendants contend that Mangan does not contest that under Delaware law Mangan cannot assert any contribution claims against Third-Party Defendants as Mangan has failed to allege that Third-Party Defendants violated the same legal duty, ie., in violation of the Mohawk Doctrine, to Mar-Cone alleged by Mar-Cone against Mangan as required by Delaware law. Third-Party Defendants’ Reply at 3 n. 1 (citing Delaware law and cases). Under Delaware law, contribution is limited to cases where the underlying action asserts claims based on the same liability against a defendant as well as the contributing party. See Walker v. Patterson, 325 F.Supp. 1024, 1026 (D.Del. 1971) (no contribution in absence of a “common liability to injured person and unless injured person has possible remedy against two or more persons.” (citing Lutz v. Boltz, 100 A.2d 647, 648 (Del.Super.1953) (construing Delaware’s Uniform Contribution of Tortfeasors Act, Del.Code Ann. tit. 10, §§ 6301-6308 (1953))). New York, by contrast, permits contribution where a contributing party’s breach of duty to a defendant differs from the duty asserted by the plaintiff against the defendant. Raquet v. Braun, 90 N.Y.2d 177, 659 N.Y.S.2d 237, 681 N.E.2d 404, 407 (1997) (citations and internal quotation marks omitted). It is “well-established” New York law that “a defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party” provided “there has been a breach of duty that runs from the contributor to the defendant who has been held liable” and that this breach “had a part in causing or augmenting the injury for which contribution is sought.” Id. Therefore, based on Mangan’s allegations, Third-Party Complaint ¶ 4, alleging that Mar-Cone has asserted a violation of the Mohawk Doctrine against Mangan, whether contribution may be sought against Giardino and Greenberger depends on whether they may be required to contribute to Mangan’s potential liability To Mar-Cone based on a breach of duty owed by them to Mangan which differs from that asserted by Mar-Cone against Mangan, Mar-Cone’s Mohawk Doctrine Claim, a possibility available under New York law but not Delaware. This difference results from the more expansive approach to permitting contribution claims in New York without regard to whether a plaintiff has chosen to sue a potential defendant or whether plaintiffs action against such putative third-party may be barred by substantive or procedural rules. See Raquet, 659 N.Y.S.2d 237, 681 N.E.2d at 407 (third parties “insulated from liability” based on “lack of duty,” and “procedural bars and special defenses,” not exempt from potential contribution claim); Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d 717, 719, 720 (1983) (contribution may lie against third party despite plaintiffs failure to join third-party as a defendant) (citing Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974, 980 (1977)). See also Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) (chemical manufacturer permitted to implead employer despite workers compensation . bar preventing plaintiffs action against employer). Thus, New York courts “recognize[ ] that contribution rules have developed to remedy an injustice to joint tort-feasors, who were permitted no general apportionment rights under prior law.” Garrett, 460 N.Y.S.2d 774, 447 N.E.2d at 719 (citing Klinger, 393 N.Y.S.2d 323, 361 N.E.2d at 980) (underlining added). Accordingly, as the outcome of Third-Party Defendants’ motion— contribution or no contribution — depends on whether New York or Delaware law applies to the requirements for Mangan’s Contribution Claims as alleged in the Third-Party Complaint, an actual conflict exists and the court is required to determine whether New York or Delaware contribution rules apply to the viability of the Third-Party Complaint. Third-Party Defendants’ Reply at 3-7 (contending that New York law precludes Mangan’s Contribution Claims). In a diversity action such as the instant case, contribution rules are considered substantive in nature requiring the court to apply forum conflicts of law rules to decide which competing jurisdiction’s contribution rules should apply. See White v. ABCO Engineering Corp., 221 F.3d 293, 307 (2d Cir.2000) (state, contribution law considered substantive in diversity cases (citing Overseas Nat’l Airways, Inc. v. United States, 766 F.2d 97, 100-02 (2d Cir.1985) (FTCA requires application of state contribution law to contribution claim against United States))). See also Steinberg v. Sherman, 2008 WL 2156726, at *6 (S.D.N.Y. May 8, 2008) (§ 1401 applies to contribution rights for state claims based on diversity jurisdiction); Comer v. Titan Tool, Inc., 888 F.Supp. 605, 608-09 (S.D.N.Y.1995) (contribution rules in diversity action are substantive and require application of forum law including choice-of-law rules — applying New York law based on decedent’s prior contacts with New York); Mascarella v. Brown, 813 F.Supp. 1015, 1018-19 (S.D.N.Y.1993) (in diversity action court applies New York contribution rules based on New York domicile of third-party plaintiff and New York as situs of negligence) (Sotomayor, J.). Thus, because state substantive law governs Mangan’s claim for contribution, ABCO Engineering Corp., 221 F.3d at 307, New York conflicts of law principles are used to determine whether New York or Delaware law applies. Under New York choice of law rules, when a conflict concerns a loss-allocating rule, including a claim for contribution or indemnification, the court applies the three-part interest analysis rule established in Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454, 457-58 (1972) (applying Ontario guest statute), to determine the state with the greatest interest or concern with the specific issues raised in the litigation. Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt International B.V. v. Schreiber, 407 F.3d 34, 50 (2d Cir.2005). Generally, under New York’s choice of law rules, the law of the state in which the wrong occurs applies to .issues of substantive law. Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 595 N.Y.S.2d 919, 612 N.E.2d 277, 280 (1993). In the instant case, all of the alleged wrongs alleged against Giardino and Greenberger by Mangan occurred in New York. Rules regarding the allocation of losses, however, require consideration of other factors including, most relevantly, the domicile of the parties. Id., 595 N.Y.S.2d 919, 612 N.E.2d at 281. The first of the three rules established under Neumeier provides that if the parties share a domicile, the loss-allocation rule of that shared domicile applies. Neumeier, 335 N.Y.S.2d 64, 286 N.E.2d at 457-58 (accident in Ontario involving Ontario plaintiff domiciliary and defendant domiciled in New York); Mascarella, 813 F.Supp. at 1018-19 (New York domicile of third-party and situs of tort controlling). Here, because it is undisputed that Mangan and Third-Party Defendants all are residents and domiciliaries of New York and the alleged wrongs by Giardino and Greenberger supporting Mangan’s Contribution Claims took place in New York, Third-Party Complaint ¶¶ 7, 10-11, the court applies New York law to the question of whether Mangan’s Contribution Claims are maintainable under § 1401. Mangan’s First Claim alleges Mangan’s right to contribution based on Third-Party Defendants’ breach of Mangan’s right as a minority non-voting shareholder under the New York’s Business Corporation Law to be given a factually correct and prior notice of a sale of the assets of APW Holding by Third-Party Defendants as majority shareholders. Third-Party Complaint ¶¶ 31-33. According to Mangan, Greenberger also misrepresented to Mangan that the sale of APW Holding and APW was to be a “stock sale” and that had Greenberger correctly advised Mangan that the sale of APW Holding was to be an asset sale, Mangan “would have had the right to terminate his employment and obtain a fair price for his shares from APW and/or the majority shareholders [Third-Party Defendants as majority shareholders of APW Holdings].” Id. ¶ 36 (underlining added). As such, Mangan asserts he would not thereby have become a seller of his minority ownership interest in APW to Mar-Cone and thus would not have been subject to the Mohawk Doctrine applicable to such a selling shareholder or owner of APW. Id.; Third-Party Plaintiffs Memorandum at 7. Mangan also alleges that Third-Party Defendants’ failure to correctly inform Mangan of the asset nature of the APW sale prevented him from filing an “objection” or “notice of dissent” to the sale and electing to have his shares “repurchased by APW” or “the majority shareholders,” Giardino and Greenberger, at “fair value” thereby avoiding any permanent obligations not to solicit APW customers following the sale of APW to Mar-Cone and his later employment by Servall. Third-Party Complaint ¶ ¶ 37-38. Based on these alleged breaches of corporate fiduciary duties owed to Mangan by Third-Party Defendants, Mangan asserts he is entitled to contribution from Third-Party Defendants in proportion to the amount of damages found to be suffered by Mar-Cone as a result of Mangan’s violation of the Mohawk Doctrine under Mar-Cone’s Third Claim. M ¶¶ 38-40. Before addressing the merits of Mangan’s First Claim based on Third-Party Defendants’ alleged breach of fiduciary duty applicable to majority shareholders such as Giardino and Greenberger, the court considers whether New York or Delaware law applies to this issue. Third-Party Defendants argue that as APW Holding is a Delaware corporation, New York’s choice of law rules require that Delaware law applies to questions of internal corporate affairs, such as the fiduciary duties of majority shareholders like Giardino and Greenberger and protections afforded a minority shareholder like Mangan. Third-Party Defendants’ Memorandum at 12 n. 3 (citing Walton v. Morgan Stanley & Co., Inc., 623 F.2d 796, 798 n. 3 (2d Cir.1980) (New York law requires the law “of state of incorporation governs an allegation of breach of fiduciary duty owed to a corporation.”)). In New York, “[t]he primary source of the law [pertaining to a stockholder’s derivative action] remains that of the state which created the corporation.” Diamond v. Oreamuno, 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N.E.2d 910, 915 (1969). The court therefore applies Delaware law to Mangan’s, First Claim regarding the extent of Mangan’s alleged rights to notice and repurchase of his APW Holding shares and any ownership in APW represented by such shares. However, as the court finds little substantive difference between New York and Delaware law on this issue, and as Mangan appears to rely primarily on New York law, Third-Party Complaint ¶ ¶ 32, 37, but secondarily on Delaware law, Gillen Affidavit ¶ ¶ 4, 5.3, the court discusses the merits of Mangan’s First Claim, based on a breach of fiduciary duty owed by Giardino and Greenberger to Mangan, under both New York and Delaware law. Regarding Mangan’s Second Claim alleging that Greenberger misrepresented the correct nature — stock or asset — of the APW sale to Mar-Cone, Mangan contends that New York law applies to this issue. Third-Party Plaintiffs Memorandum at 4-5 (citing Robinson v. Avis Rent-A-Car, Inc., 1999 WL 342037, at *3 (E.D.N.Y. May 24, 1999) (New York choice of law requires application of the law of place of injury, not place where misrepresentation or fraud occurred)). Third-Party Defendants do not specifically respond to this argument; rather, Third-Party Defendants assert only that Mangan has abandoned any claim to contribution under Delaware law. Third-Party Defendants’ Reply at 3 n. 1. New York courts hold that a cause of action for tort accrues where its economic impact is felt, which generally is the plaintiffs residence. Ceres Partners v. GEL Associates, 918 F.2d 349, 353 (2d Cir.1990) (citing Sack v. Low, 478 F.2d 360, 366 (2d Cir.1973) (citing Myers v. Dunlop Tire & Rubber Corp., 40 A.D.2d 599, 335 N.Y.S.2d 961 (1st Dep’t 1972))). In any event, based on the pleadings it is apparent that Greenberger’s alleged misrepresentations to Mangan took place in New York. Third-Party Complaint ¶42. Further, as New York contribution law applies, whether the misrepresentations are tortious requires the application of New York law as well. Accordingly, the court applies New York law to Mangan’s Second Claim based on the alleged misrepresentation by Greenberger. 5. Standards Governing Third-Party Defendants’ Motion. Third-Party Defendants move to dismiss Mangan’s contribution claims pursuant to Fed.R.Civ.P. 12(b)(1) — lack of jurisdiction, 12(b)(6) — failure to state a claim, and 12(c) — judgment on the pleadings. As the court finds that supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) is available to support subject matter jurisdiction over Mangan’s Contribution Claims, Discussion, supra, at 356-60, and as Third-Party Defendants proffer no arguments that Third-Party Defendants are entitled to judgment on the pleadings, the court considers Third-Party Defendants’ motion pursuant only to Fed.R.Civ.P 12(b)(6). The same analysis applicable to a Fed. R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss applies to a Fed.R.Civ.P. 12(c) motion for judgment on the pleadings. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). In particular, “ ‘[o]n a motion to dismiss or for judgment on the pleadings, [the court] must accept all allegations in the complaint as true and draw all inferences in the non-moving party’s favor.’ ” LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003) (bracketed material added and additional quotation omitted)). On a motion to dismiss under Rule 12(b)(6), the court looks to the four corners of the complaint and is required to accept the plaintiffs allegations as true.and to construe those allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Goldstein v. Pataki 516 F.3d 50, 56 (2d Cir.2008) (court is required to liberally construe the complaint, accept as true all factual allegations in the complaint, and draw all reasonable inferences in the plaintiffs favor). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The Second Circuit has made clear that “for the purposes of deciding a motion to dismiss pursuant to Rule 12(b)(6), ‘the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.’ ” Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002)). “ ‘Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.’” Id. “Furthermore, ‘the harm to the plaintiff when a court considers material extrinsic to a complaint [on a Rule 12(b)(6) motion to dismiss] is the lack of notice that the material may be considered.’ ” Id. As such, “ ‘where plaintiff has actual notice of all the information in the movant’s papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.’ ” Id. Here, although Third-Party Defendants include in their motion papers various documents, including, inter alia, the NonDisclosure Agreement, the Subscription Agreement, the Stockholders’ Agreement, and the Revised Employment Agreement, all such documents are either incorporated by reference into, or attached as exhibits to the Third-Party Complaint. See Third-Party Complaint (Doc. No. 105), ¶ 12 (certificate of merger); ¶¶ 19, 24-25, 35 (Revised Employment Agreement); ¶¶ 21-23 (“Stock Subscription Agreement and Stockholders’ Agreement”); and Third-Party Complaint, Exh. A (Second Amended Complaint referencing the Revised Employment Agreement ¶ 34) and the NonDisclosure Agreement ¶ ¶ 16, 43-44), and Exh. B (Answer to Second Amended Complaint, with Defenses, Counterclaims. Accordingly, Mangan, by incorporating by reference or attaching such documents to the Third-Party Complaint, has established Mangan had actual notice of such documents, upon which Mangan has relied in framing the Third-Party Complaint, thus dissipating the need to convert the instant motion to dismiss into one for summary judgment before the court can rely on such documents. Mangiafico, 471 F.3d at 398 (citing Chambers, 282 F.3d at 152-53). The court therefore turns to the question of the viability of Mangan’s Contribution Claims under applicable New York and Delaware law. 6. Mangan’s First Claim Seeking Contribution Based on Third-Party Defendants’ Alleged Breach of Fiduciary Duties Owed Mangan as a Minority Shareholder. Because, as discussed, Discussion, infra, at 367-68, § 1401 is limited to providing apportionment of damages among contributing tort-feasors in relation to an action brought by a plaintiff against a defendant based on defendant’s commission of a tort, if Mar-Cone’s Mohawk Doctrine claim does not arise in tort, § 1401 contribution is inapplicable. Moreover, although New York recognizes possible contribution based on a breach of duty owed to a defendant different from that alleged by plaintiff against the defendant, because contribution under § 1401 is limited to joint, successor and other tort-feasors, unless the differing duty asserted in support of contribution also is tortious in‘nature, so as to render the third-party defendant a tortfeasor, such asserted duty will similarly render § 1401 unavailable. The court thus examines whether Mar-Cone’s Mohawk Doctrine Claim is based on tort and whether each fiduciary duty Mangan alleges was violated by Giardino and Greenberger are, or are not, also tortious in nature. Under New York law, contribution pursuant to § 1401 may be sought against concurrent, successive, independent, alternative and even intentional tort feasors, Raquet, 659 N.Y.S.2d 237, 681 N.E.2d at 407, provided that the contributing party is shown to have breached a duty to the defendant which caused or increased plaintiffs injury. Id. “Generally, apportionment [contribution] rights among wrongdoers arise when ‘two or more tortfeasors share in responsibility for an injury, in violation of duties they respectively owed to the injured person.’ ” Garrett, 460 N.Y.S.2d 774, 447 N.E.2d at 719 (underlining added) (quoting Smith v. Sapienza, 52 N.Y.2d 82, 436 N.Y.S.2d 236, 417 N.E.2d 530, 532 (1981), and citing Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974), and Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403 (1973)). Although New York law bars contribution for purely economic losses based on a breach of contract, Sommer v. Federal Signal Corporation, 79 N.Y.2d 540, 583 N.Y.S.2d 957, 593 N.E.2d 1365, 1369 (1992); Sargent, 523 N.Y.S.2d 475, 517 N.E.2d at 1364, where the contributing party is alleged to have negligently performed a contract based on a duty arising from a contract of “public policy,” such tortious misconduct will suffice to support a contribution claim pursuant to § 1401. Sommer, 583 N.Y.S.2d 957, 593 N.E.2d at 1370-71. Contribution therefore may be sought where the underlying action “sounds both in contract and tort.” Stratagem Development Corp. v. Heron Int’l N.V., 153 F.R.D. 535, 551 (S.D.N.Y.1994) (citing Sommer, 583 N.Y.S.2d 957, 593 N.E.2d at 1373). New York also recognizes contribution will lie “in favor of tort-feasors against third parties as to whom plaintiffs had no direct right of recovery due either to their failure to join the third parties as defendants or to some special defense barring recovery.” Garrett, 460 N.Y.S.2d 774, 447 N.E.2d. at 719 (citing Klinger, 393 N.Y.S.2d 323, 361 N.E.2d at 979-80). For example, in Garrett, despite plaintiffs’ inability to allege a cognizable duty against the municipal third-party defendant under relevant New York law, the court sustained defendants’ contribution claims against the municipal defendant finding it owed a special duty to defendants the breach of which contributed to plaintiffs’ personal and property injuries as “joint tort feasors.” Garrett, 460 N.Y.S.2d 774, 447 N.E.2d at 722-23. In Garrett, the court found such a duty to exist based on the defendant municipality’s alleged failure to use reasonable care, or negligence, in issuing a certificate of occupancy upon the competition of the hotel premises and negligently approving construction alterations to “ensure the premises were not in blatant violation of fire and safety laws,” Garrett, 460 N.Y.S.2d 774, 447 N.E.2d at 721, duties of a classically tortious nature, specifically, negligence. Therefore, in order for a contribution claim to arise under § 1401, the claim must be alleged by one tort feasor against another based on a breach of duty of a tortious nature owed either to the plaintiff by the contributing third party or a special duty of a tortious nature owed by the third party to the defendant seeking contribution or both. At the threshold, the court therefore addresses whether Mar-Cone’s Mohawk Doctrine claim in the underlying action alleges a tort for if a Mohawk Doctrine violation is, as a matter of New York law, one solely for economic losses based on breach of contract, neither Mangan, Giardino nor Greenberger could be joint tortfeasors and thus no contribution claim as asserted by Mangan may arise under § 1401. Raquet, 659 N.Y.S.2d 237, 681 N.E.2d at 407; Sargent, 523 N.Y.S.2d 475, 517 N.E.2d at 1364; Garrett, 460 N.Y.S.2d 774, 447 N.E.2d at 719. Thus, whether Mangan’s Contribution Claims seeking contribution for damage based on his violation of the Mohawk Doctrine fail at the outset turns on whether a violation of the Mohawk Doctrine states a claim under New York law involving misconduct constituting a tort or one seeking economic losses solely from a breach of contract, or both, i.e., for a tortious, e.g., negligent, breach of contract. See Stratagem Development Corp. 153 F.R.D. at 551; Sommer, 583 N.Y.S.2d 957, 593 N.E.2d at 1373. “Under New York common law, a seller has an ‘implied covenant’ or ‘duty to refrain from soliciting former customers, which arises upon the sale of the ‘good will’ of an established business.’ ” Bessemer Trust Co., 925 N.Y.S.2d 371, 949 N.E.2d at 468 (quoting Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329-30). Such implied covenant is required in order to prevent the seller from committing a “ ‘fraud on the contract [of sale]’ ” that would arise were a seller allowed to divert customer good will, or expected sales from existing customers and that would otherwise accrue to the purchaser. Bessemer Trust Co., 925 N.Y.S.2d 371, 949 N.E.2d at 468 (quoting Von Bremen, 93 N.E. at 189 (quoting Trego v. Hunt, [1896] AC 7)). New York courts recognize that such violation of the implied covenant not to interfere with the purchaser’s expectation of future business from established customers of the business “sounds in breach of an implied covenant of the contract of sale that the seller will permanently refrain from soliciting his prior customers.” Borne Chem. Co., Inc., 445 N.Y.S.2d at 413. In Mohawk, the New York Court of Appeals stated that “... it may be somewhat misleading to describe the duty of the seller [of a business’s good will] to refrain from soliciting his former customers as one emanating from ‘an implied covenant,’ since the duty is, in reality, one imposed by law, in order to prevent the seller from taking back that which he has purported to sell.” Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329 (underlining added). Subsequent to its discussion in Mohawk, in Hyde Park Prods. Corp. v. Maximilian Lerner Corporation, 65 N.Y.2d 316, 491 N.Y.S.2d 302, 480 N.E.2d 1084 (1985), a case involving the defendant’s alleged failure to refrain from competing with plaintiff and soliciting former customers after the sale of defendant’s peat moss business to plaintiff, the New York Court of Appeals noted that plaintiff asserted several “business torts” based on, inter alia, defendant’s “recapturing the ‘good will’ ” of the peat moss business transferred to plaintiff “upon the sale of defendant’s interest in the business,” in violation of the Mohawk Doctrine. Hyde Park Prods. Corp., 491 N.Y.S.2d 302, 480 N.E.2d at 1086. In sustaining the finding of liability but remanding for a reconsideration of damages, the court in Hyde Park emphasized that “the law imposes upon the seller ‘a specific duty to refrain from soliciting his former customers after he has sold his business and the accompanying ‘good will’ for another.’ ” Id. (quoting Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329). The court also noted that an action for “wrongful diversion of goodwill previously sold to a plaintiff by a defendant is sometimes characterized as one to recover for a breach of an implied covenant of the contract of sale that the seller will permanently refrain from soliciting his prior customers. Id. (citing Borne Chem. Co., 445 N.Y.S.2d at 413). However, in Hyde Park, the court reiterated observation in Mohawk that such emphasis on an implied covenant of sale as the basis for the restriction on solicitation was “ ‘misleading’ ” because the duty to refrain from such attempted retrieval of the seller’s customers is “ ‘one imposed by law.’ ” Id. (quoting Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329). Additionally, in certifying questions to the New York Court of Appeals on how a court should assess post-sale conduct by a seller of an investment services business interest as prohibited solicitations within the scope of the Mohawk Doctrine, the Second Circuit, as noted, Discussion, supra, at 359, recently stated that “[t]he principal legal question before us depends not on interpretation of contract law, but an application of a branch of New York tort law, the Mohawk Doctrine.” Bessemer Trust Company, 618 F.3d at 80. Significantly, in responding to the questions certified by the Second Circuit, nowhere in its decision did the New York Court of Appeals indicate any disagreement with the Second Circuit’s classification of a Mohawk Doctrine claim as one based on tort, not contract. See Bessemer Trust Company, N.A. v. Branin, 16 N.Y.3d 549, 925 N.Y.S.2d 371, 949 N.E.2d 462 (2011) (passim ). Given the consistent recognition by the New York Court of Appeals that a seller’s duty to refrain from any solicitation of present customers following the sale of a business arises from one imposed by law, Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329; Hyde Park Prods. Corp., 491 N.Y.S.2d 302, 480 N.E.2d at 1086, as an incident of the contract of sale constituting an impairment or diversion of the good will transferred by the seller, and the very recent and explicit acknowledgment of this legal classification by the Second Circuit that the Mohawk Doctrine is a species of New York tort law, the court finds that Mar-Cone’s Third Claim states a claim sounding in tort and arising from Mangan’s intentional misconduct in violation of the duty implied by law incident to the sale of APW including its good will. As such, Mangan’s status as an alleged tort-feasor under New York law satisfies a fundamental prerequisite to seeking contribution pursuant to § 1401. Nevertheless, in order for contribution to lie against a third party, § 1401 additionally requires, as relevant to this case, that alleged tortfeasors also be “subject to liability for damages for the same ... injury to property.” N.Y.C.P.L.R. § 1401. Thus, the court must consider whether Mangan’s diversion of APW’s customer good will, including reasonably expected future sales, as alleged by Mar-Cone to be its damages based on Mangan’s violation of the Mohawk Doctrine, constitutes a sufficient allegation of an “injury to property” under § 1401. Third-Party Defendants argue that Mangan’s Contribution Claims are barred under § 1401 as such claims seek contribution not for property damage as those terms are used in § 1401, but for Mar-Cone’s economic loss damages alleged under its Third Claim which is based ' on Mangan’s breach of contract or implied covenant with Mar-Cone related to the asset sale of APW. Third-Party Defendants’ Reply at 7 (citing Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 523 N.Y.S.2d 475, 517 N.E.2d 1360, 1364 (1987)) (“Sargent”). Further, Third-Party Defendants also maintain, without citation to authority, that MarCone’s alleged economic loss from Mangan’s solicitations of APW’s former customers does not constitute an “injury to property” under § 1401, thus foreclosing any contribution claims against Third-Party Defendants. Id. Thus, contribution lies against Third-Party Defendants only if Mar-Cone’s claim is one for an “injury to property” within the meaning of that term as it is used in § 1401. “Goodwill is a valuable property right derived from a business’s reputation for quality and service.” Levitt Corporation v. Levitt, 593 F.2d 463, 468 (2d Cir.1979) (affirming grant of injunctive relief against seller’s infringement of trademark which included seller’s well-known name in housing construction market (citing Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412-13, 36 S.Ct. 357, 60 L.Ed. 713 (1916); and Clairol, Inc. v. Asaro, 1975 Trade Cas. P 60,350 at 66,473, 1975 WL 898 (E.D.Mich.1975))). Good will includes a purchaser’s “right to expect that the firm’s established customers will continue to patronize the business” sold by the seller. Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329 (affirming grant of trial on claim for money damages and permanent injunction for diversion of customer’s goodwill following sale of business (citing People ex rel. Johnson Co. v. Roberts, 159 N.Y. 70, 53 N.E. 685, 688-89 (1899); Churton v. Douglas, Johns Eng Ch., p. 174; and Cruttwell v. Lye, 17 Ves, Jr. 335, 346)). New York law has long determined that business good will in the form of continued customer patronage is a valuable and transferrable property right entitling the transferee to both equitable and compensatory remedies for its protection. Mohawk, 437 N.Y.S.2d 646, 419 N.E.2d at 329 (citing and quoting Von Bremen, 93 N.E. at 188 (citing authorities)). See also In re Brown, 242 N.Y. 1, 150 N.E. 581, 582 (1926) (recognizing actually acquired good will is a valuable property interest t