Full opinion text
ORDER GRANTING IN PART AND : DENYING IN PART DEFENDANTS’ MOTION TO'DISMISS * MARGARET M. MORROW, District Judge. On February 13, 2015, FT. Travel New York, ' LLC, d/b/a - Frosch. ’’Travel (“Frosch”),’ filed this breach of contract action against Your Travel Center, Inc. (‘YTC”), YTC Travel, LLC (“LLC”), and Colin Weatherhead (collectively, “defendants”). On April 10, 2015, defendants filed a motion to dismiss Frosch’s complaint for failure to state a claim on which relief could be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Frosch opposes defendants’ motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds this, matter appropriate for decision without oral argument. The hearing calendared for June 29, 2015, is therefore vacated, and the matter is taken off calendar. I. FACTUAL BACKGROUND A. The Parties Frosch is a travel management company that has headquarters in Houston, Texas and New York, New York. It was founded more than forty years ago and specializes in providing high-touch leisure and corporate travel services to individuals and companies by, among other things, selling air transportation. It purportedly employs more than 1,400 employees, nationwide. Its current president "and Chief Executive Officer (“CEO”) is Bryan Leibman. During Leibman’s tenure, Frosch has purportedly been ranked as one of the top ten travel management companies -in the United States. YTC is an independent retail travel agency that is headquartered in Santa Barbara, California. Colin Weatherhead is YTC’s current president and CEO. YTC allegedly provides services similar to those offered-by Frosch; specifically, YTC sells air transportation and various other travel services to its clients. Unlike Frosch, however, YTC allegedly operates oh a smaller scale — it maintains approximately seven offices and primarily serves clients in Southern California and Arizona. LLC is a non-existent entity that Frosch asserts was mistakenly named in a business contract between Frosch and defendants. B. Frosch’s Relationship With YTC Leibman purportedly first met Weather-head in 2009; during the ensuing five years, the men developed a personal relationship. Frosch alleges that, on multiple occasions, Weatherhead professed admiration for Frosch’s business model and Leibman’s leadership, and conveyed an interest in entering into a business relationship with Frosch. To that end, Leibman and Weatherhead purportedly discussed a contractual arrangement pursuant to which YTC would report all' of its airline sales through a Frosch Airlines Reporting Corporation (“ARC”) branch office. The parties further purportedly contemplated that when Weatherhead decided to retire from the travel management business, he would sell YTC to Frosch for a price based on a formula set forth in a written sale agreement. As consideration for its agreement to report airline sales-through a Frosch ARC office and be purchased by Frosch, YTC was purportedly to receive, inter alia access to Frosch’s network qf service providers and preferred relationships, and to benefit from Frosch’s operating and technological expertise. The parties also purportedly contemplated that YTC would receive significant cash payments and credits in the form of “commissions” and “overrides” from airline companies as a result of reporting airline sales through Frosch’s ARC office. The amount of these commissions and 'overrides is allegedly tied to the Volume of sales reported by a travel agency through a particular ARC branch office. As a result, smaller travel agencies, allegedly receive small commission or override payments because their air travel sales are generally on a small scale while large travel agencies purportedly receive large commissions and overrides due to the substantial volume of sales they report through ARCs. Frosch alleges that, under the agreement contemplated, YTC was likely going to receive larger overrides and commissions by reporting its sales -through Frosch’s ARC branch office than it otherwise would. • At some' point between 2009 and 2014, while Leibman and Weatherhead were purportedly negotiating a business agreement between Frosch and YTC, Leibman allegedly traveled to YTC’s office in Arizona to meet with Weatherhead and YTC’s other shareholders. Weatherhead also purportedly traveled to Frosch’s Houston headquarters to-meet with Leibman-dur-ing the course of negotiations. Frosch alleges that during the parties’ numerous discussions between 2009 and 2014, Weath-erhead stated it was his intent to transfer YTC’s business to Frosch and to have Frosch acquire YTC ultimately. At -no time was severing the planned business relationship discussed. Unbeknownst to Frosbh, YTC allegedly entered into an agreement with another travel management company, Tzell Travel LLC (“Tzell”), on August 26, 2009 (the “Tzell Agreement”). Under the terms of the Tzell Agreement, Tzell was purportedly obligated to establish a joint ARC branch office with YTC (the “Tzell/YTC Branch”) through which YTC was to report its airline, and other travel services sales. C. Frosch’s Purported Contract with YTC In November 2014, Leibman and Weath-erhead allegedly resumed their discussion of a business arrangement pursuant to which YTC would report all of its airline sales through Frosch’s ARC branch office and Frosch would ultimately acquire YTC. On November 23, 2014, Frosch and YTC purportedly entered into an agreement (the “Frosch Agreement” or “Agreement”) reflecting Leibman’s and Weather-head’s discussions. Frosch asserts that the Frosch Agreement was collectively negotiated-and drafted by Leibman and Weatherhead. It names two parties: FT Travel-New- York, LLC-, d/b/a Frosch Travel (“Frosch”),. and YTC Travel, LLC (“LLC”). Frosch alleges. that -LLC is a non-existent entity that was erroneously identified by Robin Sanchez, YTC’s COO, on October 21, 2014, when she filled ip the name of Frosch’s counter-party on the Frosch Agreement. .The parties purportedly intended to name YTC as a party to the contract. The Frosch Agreement allegedly requires YTC to report airline sales through Frosch’s ARC branch office. It states that “YTC shall transfer all of its business to an ARC .,. branch office of FROSCH at the YTC location; and in this regard, shall process all its client requests for air transportation using ARC facilities contracted to FROSCH.” So that YTC could report airline sales through a Frosch branch office, Frosch agreed to establish an ARC branch office at YTC’s main office and transfer the address of its ARC office to that location. After this was done, YTC was required to “begin reporting all of its airline sales through the FROSCH ARC.” The Agreement sets forth a payment structure under which YTC would receive a portion of the commissions and overrides generated by sales it reported through the ARC branch. Frbsch was to receive the balance of the commissions and overrides. Frosch alleges that the Agreement required YTC to report airline sales through Frosch’s ARC brianch office until Weather-head decided to sell YTC to Frosch. It also asserts the Agreément sets forth the process by which YTC would be sold to Frosch. The Agreement’s “Succession” provision states, in relevant part: “FROSCH and YTC wish to prepare for the following scenarios: A) Colin Weatherhead. In the event Colin is no longer able to operate in his current capacity as CEO, the following will occur should Brenda [Weatherhead’s wife] and YTC’s Senior Management agree: 1) FROSCH will assume interim CEO responsibilities and work closely with ' YTC .senior management including Brenda, Robin [YTC’s COO], Jacki [YTC’s CFO], Chris [YTC’s CIO], and Shane [YTC’s Implementation and Training Officer] for $100,000 annual fee; 2) FROSCH will have an option of first refusal to acquire all • company shares except those of Robin Sanchez at the following formula (x5 trailing 12.months EBITDA with following adjustment for Colin’s takeout) whenever Brenda chooses to sell; [and] 3) Grant Robin Sanchez an additional 5% of the company to vest 3 years from effective date of FROSCH ownership. B) Jacki. In- the event Jacki is no longer able to operate in her current capacity while Colin is still running YTC, the following will occur: 1) Colin/YTC will acquire Jacki’s shares at the following formula set out in Jacki’s current Ownership Agreement; 2) FROSCH will assume responsibility ' for the financial operations of YTC at the following térms (annual management fee of $120,000 which can be reviewed annually and adjusted if gross sales increase -or decrease by more than 25%).” Frosch alleges that these provisions reflect the parties’ intent that Frosch would ultimately acquire YTC’s business. It contends that, in connection with the Agreement’s “Succession” provision, Leibman met and spoke with YTC’s shareholders, each of whom purportedly agreed and confirmed that YTC would ultimately be sold to Frosch. The Succession provision also states: “[i]n the event that Bryan Leibman is no longer able to serve as CEO and President of FROSCH or if FROSCH changes ownership, the following will occur: 1) YTC will have, an option to continue with this agreement or to terminate at any time thereafter merely by providing 30 days written notice.” • . Frosch contends that this provision addresses termination of the Frosch Agreement and evidences the parties’ intent that YTC would perform under the Agreement so long as Leibman still ran Frosch. Paragraph 9 is purportedly the only termination provision in the contract that was contemplated and intended by the parties. As consideration for the agreement, YTC was allegedly given access to Frosch’s network of service providers, preferred vendors, and support services, and paid increased commissions and overrides for airline sales reported through Frosch’s ARC branch office. Frosch was purportedly going to benefit by receiving increased commissions and overrides, and additional revenue, as a result of YTC’s reporting of airline sales -through Frosch’s ARC branch, and its reporting of hotel bookings through Frosch’s global distribution systems. Paragraph 5 of the Agreement, titled “Guaranty and Indemnity,” provides: “The individuals referred to as YTC in this agreement (and their spouses[) ] shall guarantee to FROSCH. the performance of YTC’s obligations under this Agreement and the payment of sums required to be paid to ARC in connection with the. issuance of ARC Traffic Documents from the FROSCH branch, and shall execute personal guaiv antees, in the form attached as Exhibit A. ; YTC shall indemnify and' hold harmless FROSCH, its officers, directors, employees and YTCs (‘Indemnities’) from and against any and all liabilities, damages, expenses, • claims, demands, suits, fines, or judgments including, but not limited to, attorneys’ fees, costs, arid expenses incident thereto, which may be suffered by, accrued against, charged to, or recovered from the Indemnities arising from the negligent or wrongful act, error, or omission of YTC from their failure to perform this Agreement.” D. YTC’s Termination of the Frosch Agreement The day after Leibman and Weather-head purportedly executed the Frosch Agreement, YTC allegedly provided notice to Tzell that it was terminating the Tzell Agreement within thirty days — i.e., by December 24, 2014. So that YTC’s termination of the Tzell Agreement could become final, Leibman and Weatherhead allegedly agreed that YTC would begin to perform its obligations under the Frosch agreement on January 5, 2015. Frosch alleges that, following execution of the Agreement and in anticipation of YTC’s commencement of performance, it advised its service providers, including major airlines, that YTC would begin to report airline sales through Frosch’s ARC branch office and that, as a result, the ARC branch would report a higher volume of sales than it had previously. Fros'ch asserts, on information and belief, that its service providers took affirmative steps to plan for and accommodate the expected increased sales that were to be reported through Frosch’s ARC. It also alleges, on information and belief, that Tzell acknowledged and accepted YTC’s initial termination notice. It contends, on information and belief, that thereafter, Tzell’s CEO, Barry Liben, began to intimidate Weatherhead in an effort to dissuade him from joining Frosch. This purportedly caused Weatherhead to unilaterally terminate the Frosch Agreement. In his termination email to Leib-man, Weatherhead purportedly admitted that he had signed the Agreement, but noted that “certain issues from both a legal and business perspective which have come to light over the past 48 hours” led him to reassess the propriety of a business arrangement with Frosch. Frosch contends that since Leibman remains Frosch’s president and CEO and Frosch’s ownership is the same as it was when the Agreement was executed, the termination provision has not been triggered. As a consequence, it asserts, YTC has breached the Frosch Agreement by failing to perform its contractual obligations. E. Frosch’s Claims Frosch pleads seven claims based on these facts. The first and second causes of action allege claims for breach of contract against YTC; the first seeks specific performance of the Frosch Agreement, while the second seeks damages caused by YTC’s purported breach. The third cause of action alleges breach of contract against Weatherhead in his personal capacity and seeks damages caused by YTC’s purported breach of the Agreement. The fourth claim names YTC and seeks reformation of the Agreement in the event the court finds that YTC is not the party named in the contract. The reformation claim is based alternatively on mutual mistake and fraüd. Frosch’s fifth cause of action is alternative to the first through fourth claims, and pleads breach of contract against LLC in the event the court “finds that LLC is a valid and existing-legal entity and the correct legal entity that the parties intended to be FROSCH’s counterparty under the FROSCH Agreement.” The sixth cause of action is another breach of contract claim against Weatherhead, premised on the fact that he signed the Agreement on behalf of LLC. This claim, like the fifth claim, is alternative to the first through fourth causes of action, and seeks to , hold Weatherhead personally liable under the Agreement in the event the court concludes that there is a valid, binding contract between Frosch and LLC. Finally, Frosch’s seventh cause of action, which is alternative to its first through sixth causes of action, alleges breach of contract against Weatherhead based on allegations that he’ signed the Frosch Agreement on behalf of a nonexistent entity. II. DISCUSSION A. Legal Standard Governing Motions to Dismiss Under Rule 12(b)(6) A Rulé 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory,” or “the absence of sufficient facts alleged undér a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d.747, 750 (9th Cir.1995). The court need not, however, accept as true unreasonable inferences or conelusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Thus, a plaintiffs complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (“Factual allegations must be enough to raise the right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive.of a claim entitling the plaintiff to relief,” citing Iqbal and Twombly). B. Legal Standard Governing Breach of Contract Claims Under New York Law To state a claim Tor breach of contract under New York law, “a complaint need only allege (1) the existence of an agreement;, ,(2) adequate performance by the plaintiff; (3) breach by the defendant; and (4). damages.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 177 (2d Cir.2004) (citing Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir.1996)); see also Wolff v. Rare Medium, Inc., 210 F.Supp.2d 490, 494 (S.D.N.Y.2002) (“To establish a breach of contract under New York law, a plaintiff must plead the following elements: (i) the existence of a contract; (ii) a breach of the contract; and (in) damages resulting from the breach,” citing Terwilliger v. Terwilliger, 206 F.3d 240, 245-46 (2d Cir.2000)). At the pleading stage, the plaintiff must “‘at a minimum, allege the terms of the contract, each element of the alleged breach and the resultant damages in a plain and simple fashion.’ ” Lan Sang v. Ming Hai, 951 F.Supp.2d 504, 527 (S.D.N.Y.2013) (quoting Zaro Licensing, Inc. v. Cinmar, Inc., 779 F.Supp. 276, 286 (S.D.N.Y.1991)). C. Whether Frosch Has Plausibly Alleged Breach of Contract and Reformation Claims Defendants seek dismissal of Frosch’s complaint on the grounds that: (1) the Agreement lacks material terms — specifically, a defined duration; (2) the Agreement’s succession provision contains impermissible “agreements to agree”; (3) the Agreement lacks consideration; (4) no defendant is bound by the Agreement; and (5) Frosch has failed to allege damages resulting from defendants’ purported breach. The court addresses each argument in turn. 1. Whether the Agreement Lacks Material Terms Under New York law, a contract must be “ ‘reasonably certain in its material terms’ ” in order to be legally enforceable. Hudson & Broad., Inc. v. J.C. Penney Corp., Inc., 553 Fed.Appx. 37, 39 (2d Cir.2014) (Unpub. Disp.) (quoting Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482, 548 N.Y.S.2d 920, 548 N.E.2d 203 (1989)). In determining whether a contract contains all-material terms, courts apply a standard that-is “ ‘necessarily flexible, varying, for example with the subject of the agreement, its com plexity, the purpose for- which the contract was made, the circumstances under which it was made, and the relation of the parties.’ ” Town of Eden v. American Ref-Fuel Co. of Niagara, 284 A.D.2d 85, 88, 727 N.Y.S.2d 843 (N.Y.App.Div.2001) (quoting Cobble Hill, 74 N.Y.2d at 482-83, 548 N.Y.S.2d 920, 548 N.E.2d 203). “In the absence of material terms, there is no contract and whatever agreement exists is simply too vague to be enforceable.” Gerard W. Purcell Associates, Ltd. v. Royal Caribbean Cruise Line, Inc., No. 89 CIV. 7325(JFK), 1990 WL 106793, *2 (S.D.N.Y. July 24, 1990) (citing Ginsberg Machine Co., Inc. v. J. & H. Label Processing Corp., 341 F.2d 825, 828 (2d Cir.1965); Arcan Transportation, Inc. v. Marine Midland Bank-Western, 54 A.D.2d 1103, 388 N.Y.S.2d 737, 738 (1976)). Defendants argue that .the Agreement is unenforceable because it lacks certain material terms. Specifically, they assert the Agreement fails to identify the duration of the contract. Frosch concedes the Agreement omits any mention of. duration, but argues that “the [} lack of a duration provision is of no significance because the Agreement contains a termination provision.” Under New York law, duration is considered a material term of a contract, and the absence of a term specifying duration can render a contract unenforceable. See, e.g., Ocean Group LLC v. Marcal Manufacturing, LLC, No. 09 civ. 7679(CM), 2010 WL 4963155, *7 (S.D.N.Y. Dec. 2, 2010) (“Ocean Group’s Amended Complaint fails to "assert any of the material terms of the alleged contract, including the duration of the agreement and the terms of compensation”); Gerard W. Purcell Associates, 1990 WL 106793 at *2 (“Here, certain material terms were clearly lacking, such as the quantity of entertainers Purcell was to provide, as well as the duration of Purcell’s provision of ser vices during 1989— In the absencé of máterial terms, there is no contract and whatever agreement exists is' simply too vague to be enforceable” (citations omitted)); Perfect Trading Co., Inc. v. Goldman, Sachs & Co., 236 A.D.2d 221, 653 N.Y.S.2d 116, 116 (1997) (“The first and second causes of action for breach of contract were properly dismissed since, as found by the' IAS court, ‘at most the oral communications ... [reduced to] writing can be .construed only as an agreement.to agree’ and did not provide the material terms Of the contract related to compensation and duration,” citing Central Federal Savings, F.S.B. v. National Westminster Bank, U.S.A., 176 A.D.2d 131, 574 N.Y.S.2d 18, 18 (1991)). Nonetheless, even if a contract lacks a “defined duration,” it can be enforced if it includes a cancellation or termination provision. As the Second Circuit has noted, “New York limits th[e] policy [of voiding contracts that lack a defined duration] to contracts having no termination provisions and has held it inapplicable to contracts ... which [ ] provide for termination or cancellation upon the occurrence of a specified event.” Payroll Exp. Corp. v. Aetna Casualty and Surety Co., 659 F.2d 285, 291-92 (2d Cir.1981) (citing Warner-Lambert Pharmaceutical Co. v. John J. Reynolds, Inc., 178 F.Supp. 655, 655 (S.D.N.Y.1959), aff'd, 280 F.2d 197 (2d Cir.1960); Ketcham v. Hall Syndicate, Inc., 37 Misc.2d 693, 236 N.Y.S.2d 206, 206 (1962), aff'd, 19 A.D.2d 611, 242 N.Y.S.2d 182 (1963); Ehrenworth v. George F. Stuhmer & Co., 229 N.Y. 210, 210, 128 N.E. 108 (1920); Matter of Exercycle v. Maratta, 11 A.D.2d 677, 201 N.Y.S.2d 885, 885 (1960), aff'd, 9 N.Y.2d 329, 214 N.Y.S.2d 353, 174 N.E.2d 463 (1961)). See also Nicholas Laboratories Ltd. v. Almay, Inc., 723 F.Supp. 1015, 1018 (S.D.N.Y.1989) (“[W]here termination has been provided fer in the contract, even if continuous performance is a possibility, courts should not refuse to enforce such contracts or read into them different conditions of termination” (citations omitted)). Frosch argues that the Agreement contains a termination provision in the “Succession” section. The provision states: “In the event that Bryan Leibman is no longer able to serve as CEO and President of FROSCH or if FROSCH changes ownership, the following will occur: 1) YTC will have an option to continue with’ this agreement or to terminate at any time thereafter merely by providing 30 days written notice.” Frosch argues that, consistent with the parties’ intent and specific negotiations, this is the Agreement’s only termination provision. Although defendants counter that “there is no provision in the alleged agreement entitled, or styled ..., a termination provision,” they do not explain the legal significance of this fact or cite authority for the proposition that a contract term providing for termination of an agreement must bear that specific heading or caption. Notably, defendants do not dispute that paragraph 9(C) provides' for termination of the contract upon the occurrence of a specified event. Given this fact, the court declines to dismiss Frosch’s claims on the basis that the .Agreement lacks a material term. See, e.g., Payroll Exp. Corp., 659 F.2d at 292 (concluding that a contract .was not unenforceable, due to lack of a duration term where “the parties here ... agreed ... that Aetna could terminate the policy upon Payroll’s failure to pay premiums due”); Nicholas Laboratories Ltd., 723 F.Supp. at 1018 (“[W]here termination has been provided for in the contract, even if continuous performance is a possibility, courts should not refuse to enforce such Contracts”), aff'd, 900 F.2d 19 (2d Cir.1990); Ketcham, 236 N.Y.S.2d at 212-13 (“The contract in the case -at bar[ ] is not indefinite as to duration. Paragraphs 4, 5, and 6 provide specifically for termination by either party upon the happening- of certain events. The contract provides that ... ‘each of the parties shall have the-right to terminate this agreement at the end of any one year period hereof in the event that plaintiffs share fall[s] below the stipulated amount and the defendant at its sole discretion, to avoid a termination of this agreement, failed to advance the difference in the . minimum stipulated amount.’ The plaintiff asserts that these provisions render the contract indefinite because they include no specific date for the termination of the contract. This, however, is not the kind of indefiniteness which renders the contract voidable, since specific provision is made for termination. It' is this specificity which destroys the plaintiffs case”). Cf. Don King Productions, Inc. v. Douglas, 742 F.Supp. 741, 763 (S.D.N.Y.1990) (concluding that an agreement having a term of three years that was to be “automatically extended to cover the entire period [Douglas is] world champion and a period of two years following the date on which [Douglas] thereafter cease[s], for any reason, to be so recognized as world champion” was not void for indefiniteness because it “provide[d] for termination or cancellation upon the occurrence of a specified event” (citations omitted)). Defendants argue, however, that the contract is “terminable at will” because it “lack[s][] a duration term”; as a result, defendants assert that they “were free to terminate [the Agreement] and cannot be liable for breach.” The court has concluded, however, that the termination provision in paragraph 9(C) sets forth a “determinable duration,” which precludes a finding that the contract is terminable at will. Cf. Ketcham, 236 N.Y.S.2d at 212 (“Absent a fixed or determinable duration or an express provision that the duration is perpetual, the contract is one terminable at will. The contract in the case at bar, is not indefinite as to duration. Paragraphs 4, 5, and 6 provide specifically for termination by either party upon the happening of certain events,” citing A.S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 382, 165 N.Y.S.2d 475, 144 N.E.2d 371 (1957) (emphasis original)). This fact also distinguishes the case from the authority defendants cite in their moving papers. In Companía Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co., 607 F.Supp.2d 600, 602 (S.D.N.Y.2009), Judge Jed Rakoff of the Southern District of New York denied plaintiffs untimely motion to amend its complaint noting, inter alia, that granting the plaintiff leave to amend its dismissed wrongful termination claim would be futile. Judge Rakoff had' previously rejected plaintiffs assertion that its contract with the defendant was perpetual, concluding that the parties had not expressly stated such an intent. Id. (“As the Court emphasized in dismissing CESPA’s wrongful termination claim, if the parties to a contract intend for it be perpetual, they must expressly say so. Here, as noted, the EBA has no definite term and provides no end date for its duration”). Because the contract, had no “fixed or determinable duration” and did not include “an express provision [stating] that the duration [was] perpetual,” Judge Rakoff dismissed the wrongful termination claim, finding that the contract was at will. Id. (citing Warner-Lambert Pharm. Co., 178 F.Supp. at 661; Ketcham, 236 N.Y.S.2d at 206). Here, by contrast, Frosch does not argue that the contract was perpetual, i,e., that it was to continue in perpetuity without no possibility of termination. Rather, it asserts .that the Agreement was terminable on the occurrence of a specific event— i.e., .Leibman’s departure from Frosch or Frosch’s change of ownership. Judge Ra-koff s order in no way indicates that the contract in Compania Embotelladora contained a similar provision. Similarly, in Federal Deposit Insurance Corp. v. Northwood Projects, Inc., 95 Misc.2d 373, 407 N.Y.S.2d 424, 426-27 (1978), the New York Supreme Court declined to find that a stockholder agreement that provided stockholders would indemnify the defendant corporation and give it guarantees was perpetual, noting that there was “no provision in the stockholders’ agreement which required that [defendant] have a continuing obligation to execute guarantees with respéct to corporate debts incurred after his relationship with the corporation and other stockholders had been terminated.” Frosch does not argue that the Agreement was perpetual in duration, however; it contends that the Agreement includes a termination provision and thus is not void for indefiniteness. As a result, Federal Deposit Insurance Corp. is inapposite and does not compel the conclusion that the contract is terminable at will. In their reply, defendants argue that the Agreement provides it is terminable at will, not merely under the circumstances enumerated in paragraph 9(C). They cite paragraph 8 of the Agreement, which states, in relevant part: “(a) During the term of this Agreement and after its termination for any reason, FROSCH and YTC agree not to furnish to any person, firm, company, or corporation engaged in a business competitive with the other party, any-information whatsoever as to the other party’s relations, agreements, or contracts with its suppliers, its vendors (including, but not limited to* airlines, hotels, and car rental agencies), its clients (or the clients of other commission agents or contractors working with it) including the other,party’s client , mailing list, list of customers, suppliers, prices, terms, and negotiations, or other information concerning the other party, its employees, . contractors or their business. (b) -Without the consent of FROSCH, during the term of this Agreement and after its termination for any reason, for a period of (3) three years from termination, YTC shall neither solicit nor service the clients of FROSCH who were clients of FROSCH, its commission agents or cbntractors at the termination of this Agreement or at any time in the previous (3) three years nor solicit officers, employees, or independent contractors to terminate their relationship with FROSCH. Likewise, without the consent of YTC, .during -the term of this Agreement and for a period of (3) three years from its termination for any reason,, FROSCH shall neither solicit nor service the clients of YTC who were clients of YTC, their commission agents or contractors on the date this Agreement was made or during its term, nor solicit officers, employees, or independent contractors to terminate their relationship with YTC ” Because this provision includes the phrase “after its termination for any reason,” defendants contend it is “clear[] that the alleged ágreement was terminable at will.”' This argument was not .raised in defendants’ motion,which asserted only that the contract was terminable at will due to “the lack of a duration, provision”; rather, it was raised for the first time in reply. Courts decline to consider arguments that are raised for the .first time in reply. See, e.g., Ellison Framing, Inc. v. Zurich American Ins. Co., 805 F.Supp.2d 1006, 1011 n. 1 (E.D.Cal.2011) (noting that “[t]he court typically cannot consider arguments first raised in reply”); Stewart v. Wachowski, No. CV 03-02873 MMM, 2004 WL 2980783, *11 (C.D.Cal. Sept. 28, 2014) (refusing to consider an argument raised for the first time in reply); Halliburton Energy Services, Inc. v. Weatherford International, Inc., No. Civ.A. 302 CV 1347-N, 2003 WL 22017187, *1 n. 1 (N.D.Tex. Aug. 26, 2003) (“Halliburton offers additional grounds for reconsideration in its reply[;] however, the grounds are not proper under Rule 59(e), ... and the Court will not consider an argument raised for the first time in a reply brief"); Dietrich v. Trek Bicycle Corp., 297 F.Supp.2d 1122, 1128 (W.D.Wis.2003) (“Defendant raised this argument for the first time in its reply brief. Because this argument should have been raised earlier or not at all, I will not consider it”); Public Citizen Health Research Group v. National Institutes of Health, 209 F.Supp.2d 37, 44 (D.D.C.2002) (“The Court highly disfavors parties creating new arguments at the reply stage that were.not fully briefed during the .litigation...... By placing a new argument in the Reply, Plaintiff does not permit Defendant or Interyenor-Defen-dant to competently respond to such an argument”); Grupo Gigante S.A. de C.V. v. Dallo & Co., Inc., 119 F.Supp.2d 1083, 1103 n. 15 (C.D.Cal.2000) (“Although the defendants raised a laches defense in their opposition to the plaintiffs’ motion for summary judgment, the first time they raised a statute of limitations defense was in their reply brief. The Court need not, and'does not, consider arguments raised for the first time-in a reply brief’). Accordingly, the court declines to = consider whether the “lack of- a duration term” renders the contract terminable at will. 2. Whether the Agreement Contains an Unenforceable “Agreement to Agree” Defendants next contend that the contract is unenforceable'-because it purportedly contains several “agreements to agree.” As the New York Court of Appeals has observed, “it is [ ] well settled in the common law of contracts in this State that a mere agreement to agree,'in which a material term is left for future negotiations, is unenforceable.” Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109-10, 436 N.Y.S.2d 247, 417 N.E.2d 541 (1981) (citing Willmott v. Giarraputo, 5 N.Y.2d 250, 253, 184 N.Y.S.2d 97, 157 N.E.2d 282 (1959)). See also Adjustrite Sys. Inc. v. GAB Business Services, Inc., 145 F.3d 543, 548 (2d Cir.1998) (“[W]here the parties contemplate further negotiations and the execution of a formal instrument, a preliminary agreement does not create a binding contract”). Defendants identify two purportedly impermissible “agreements to agree” in the Frosch Agreement—Paragraphs 9(A) and 9(D). Paragraph 9(A) states: “Colin Weatherhead. In the event Colin is no longer able to operate in his current capacity as CEO, the following will occur should Brenda and YTC’s Senior Management agree: 1) FROSCH > will assume interim CEO responsibilities and work closely with YTC senior management including Brenda, Robin, Jacki, Chris, and Shane for $100,000 annual fee; 2) FROSCH will- have an option of first refusal to acquire all company shares except those of Robin Sanchez at the following formula (x5 trailing 12 months EBITDA with following adjustment for Colin’s takeout) whenever Brenda chooses to sell; [and]--4) Grant Robin Sanchez an additional 5% of the company to vest 3 years from effective date of FROSCH ownership.” Defendants contend that this provision is an impermissible “agreement to agree” because it leaves a material term, i.e., succession and Frosch’s option of first refusal to acquire YTC, subject to further “negotiation.” The court cannot agree. . Contrary to defendants’ contention, paragraph 9(A) does not leave “material terms of [the] proposed contract for future negotiation” by the parties. Andor Group, Inc. v. Benninghoff, 219 A.D.2d 573, 631 N.Y.S.2d 79, 80 (1995) (citing Schumacher, 52 N.Y.2d at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Rather, it reflects that the parties negotiated and agreed on the steps that would be taken if Weatherhead was' no longer CEO of YTC — i.e., that Brenda Weatherhead and YTC senior management would meet and approve the succession terms detailed in the provision. It does not require the negotiation of new terms nor does it call for preparation and execution of contract documents; the price and process by which Frosch will acquire YTC is set forth in detail. Cf. Carmon v. Soleh Boneh Ltd., 206 A.D.2d 450, 614 N.Y.S.2d 555, 556 (1994) (concluding that a contract that provided that the “exact nature of the legal entity to be formed” upon the happening of certain conditions would be determined by the parties following study, as would the elements of future profit is enforceable, citing Teachers Insurance and Annuity Association of America v. Tribune Co., 670 F.Supp. 491, 499 (S.D.N.Y.1987)). While the provision appears to give Brenda and YTC senior management the right to approve the terms at some future time, “‘a contract is not necessarily lacking in all effect merely because it expresses the idea that something is left to future agreement.’ ” Tractebel Energy Marketing, Inc. v. AEP Power Marketing, Inc., 487 F.3d 89, 95 (2d Cir.2007) (quoting Express Indus. & Terminal Corp. v. N.Y. State Dep’t of Transp., 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050 (1999)). As a consequence, the court cannot agree that Frosch’s claims must be dismissed at this stage because paragraph 9(A) constitutes an “agreement to agree.” Compare Danton Construction Corp. v. Bonner, 173 A.D.2d 759, 571 N.Y.S.2d 299, 300-01 (1991) (“Applying these principles at bar, -we find that by reserving a vague right to ‘reformat’' the terms of the proposed conveyance, the defendant sellers left significant terms of the transaction open to future negotiation. Since the parties never came to a meeting of the minds as to the essential terms of the proposed conveyance, and never executed a formal contract as contemplated by the option letter, we find that the option letter was no more than an unenforceable “agreement to agree,’”” citing Engle v. Lipcross Inc., 153 A.D.2d 603, 544 N.Y.S.2d 638, 638 (1989); Ramos v. Lido Home Sales Corp., 148 A.D.2d 598, 539 N.Y.S.2d 63, 63-64 (1989)); Bernstein v. Felske, 143 A.D.2d 863, 533 N.Y.S.2d 538, 540 (1988) (“In the case at bar, the letter of intent leaves for future negotiation provisions for limiting the amount of loans, restricting transfer of each venturer’s interest, and delineating - management responsibility. Absent any -indication in the letter of intent of an objective' méthod, independent- of each party’s mere wish or desire, upon which to make these provisions definite, we must decline to supply them by implication,' since in this case, ‘the void is too great, the omissions are too noticeable and the risk of ensnaring a party in a set of contractual obligations that he never knowingly assumed is too serious’ ” (citations omitted)). As respects defendants’ second argument, ¶ 9(D) states: “In the event other scenarios occur unforeseen above, FROSCH and YTC shareholders, including Colin and Brenda Weatherhead, agree" to meet in good faith to achieve an equitable outcome in the spirit of the cooperation between Bryan, Colin, Brenda, Robin, and Jacki — current ■ shareholders of FROSCH and YTC at the time of signing .this agreement.” Defendants assert this provision is an impermissible agreement to agree because it “acknowledges that the parties had not come to a meeting of the minds concerning critical issues of succession.” Once again, the court is not persuaded. While-paragraph 9(D)' might have been an impermissible “agreement to agree” if it was the sole succession provision in the Agreement — as that would indicate that the parties elected not to consider the issue of succession as part of the contract — the parties did negotiate various issues-related to succession. The fact that they did not negotiate or resolve all issues does not render the terms they did resolve an impermissible “agreement to agree.” Moreover, this provision represents nothing more than a contract to negotiate in good faith in the event unforeseen circumstances arise in the future. New York courts have routinely found such provisions enforceable. See, e.g., EQT Infrastructure Ltd. v. Smith, 861 F.Supp.2d 220, 229 (S.D.N.Y.2012) (“[P]arties can contractually obligate themselves to negotiate in good faith”)., 3. Whether the Agreement Lacks Consideration Defendants also contend the court should dismiss Frosch’s claims because the Agreement lacks consideration. Under New York law, “[i]t is well established that the ‘slightest consideration is sufficient to support the most onerous obligation’ and that the courts are not to inquire into the adequacy of consideration.” Continental Energy Corp. v. Cornell Capital Partners, L.P., No. 04 Civ. 260 GEL, 2005 WL 3543972, *2 (S.D.N.Y.2005) (quoting Caisse Nationale de Credit Agricole-CNCA v. Valcorp, Inc., 28 F.3d 259, 265 (2d Cir.1994)). “Generally, parties are free to make their own bargains, and, absent a claim of fraud, or unconseion-ability, it is enough that something of real value in the eye of the law was exchanged.” Ferguson v. Lion Holdings, Inc., 312 F.Supp.2d 484, 494 (S.D.N.Y.2004). As the New York, Court of Appeals has explained, “ ‘[i]t is enough that something is promised, done, foreborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.’ ” Granite Partners, L.P. v. Bear, Stearns & Co., Inc., 58 F.Supp.2d 228, 252 (S.D.N.Y.1999) (quoting Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 464, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982)). Defendants argue that because Weatherhead never signed the guaranty attached to the' Agreement as Exhibit A and because Frosch did not establish a new ARC branch office at YTC’s headquarters, as was contemplated, Frosch’s claims must be dismissed for lack of consideration. The court cannot agree. Although under New York law, consideration is required for a contract to be valid, see Weiner, 57 N.Y.2d at 463, 457 N.Y.S.2d 193, 443 N.E.2d 441, “[a]s a matter of pleading,[] the -prevailing rule [among New York courts] is that consideration need not be pled in the complaint, and that lack of consideration is best treated as an affirmative defense.” Thomas H. Lee Equity Fund V, L.P. v. Bennett, No. 05 Civ. 9608(GEL), 2007 WL 950133, *2 (S.D.N.Y. Mar. 28, 2007) (citations omitted). As a result, New York courts routinely deny Rule 12(b) (6) motions that seek dismissal on the basis of a lack- of consideration. See, e.g., Dumont v. Litton Loan Servicing, LP, No. 12-cv-2677-ER-LMS, 2014 WL 815244, *7 (S.D.N.Y. Mar. 3, 2014) (“Defendants urge the Court to dismiss Williams’s claim because it does not allege offer, acceptance, consideration, and meeting of the minds — The Bennett approach seems to be in line with the standard set forth in Twombly and Iqbal. While each specific element of contract formation will need to be present in order for Williams to prevail at trial (or at summary judgment), her claim for breach is not implausible merely because she fails to address each of those sub-elements at this stage,” citing Thomas H. Lee Equity Fund, 2007 WL 950133 at *2); Sweringen v. New York State Dispute Resolution Association (N.Y.SDRA), No. 1:05-CV-428 (NAM/DRH), 2007 WL 2403197, *8 (N.D.N.Y. Aug. 17, 2007) (denying a motion to dismiss breach of contract claims based on plaintiffs failure to allege consideration); Jaufman v. Levine, No. 1:06—CV-1295 (NAM/DRH), 2007 WL 2891987, *12 (N.D.N.Y. Sept. 28, 2007) (“Under New York law, ‘[i]t is well established that the ‘slightest consideration is sufficient to support the most onerous obligation’ and that the courts are not to inquire into the adequacy of consideration.’ ... [Thus,] dismissal based upon inadequacy of consideration is not appropriate at this time. Accordingly, defendants’ motion tó dismiss the fourth cause of action is denied,” citing Granite Partners, L.P., 58 F.Supp.2d at 256); Thomas H. Lee Equity Fund, 2007 WL 950133 at *2 (denying a motion to dismiss for failure to allege consideration after concluding that “consideration is best treated as an affirmative defense” and need not “be pled in the complaint”). Because Frosch does not have to plead consideration to allege a plausible breach of contract claim under New York law, defendants’ motion to dismiss on this basis is denied. 4. Whether Defendants Are Bound by the Agreement Defendants next contend that Frosch’s claims must be dismissed because the purported agreement does not bind any of the defendants. a. Whether LLC Is Bound by the Agreement Defendants first argue that the fifth and sixth causes of action against LLC and Weatherhead for signing on behalf of LLC must be dismissed because the claims “identify] as [Frosch’s] counterparty an entity that does not exist.” A nonexistent entity cannot “acquire rights by contract or otherwise, incur debts.or other liabilities either in contract or tort, sue or be sued.” Farrell v. Housekeeper, 298 A.D.2d 488, 489, 748 N.Y.S.2d 410 (N.Y.App.Div.2002) (citing Kiamesha Devel. Corp. v. Guild Props., 4 N.Y.2d 378, 389, 175 N.Y.S.2d 63, 151 N.E.2d 214 (1958); Judarl v. Cycletech, Inc., 246 A.D.2d 736, 667 N.Y.S.2d 451, 451 (1998); Mindlin v. Gehrlein’s Marina, 58 Misc.2d 153, 295 N.Y.S.2d 172, 173-74 (1968)). See also, e.g., 442 Decatur Street, LLC v. Spheres Realty, Inc., 14 A.D.3d 535, 535-36, 787 N.Y.S.2d 669 (N.Y.App.Div.2005) (holding that an LLC that had not yet filed its articles of' organization did not exist and lacked capacity to enter into a contract); 183 Holding Corp. v. 183 Lorraine Street Associates, 251 A.D.2d 386, 386-87, 673 N.Y.S.2d 745 (N.Y.App.Div.1998) (holding that a corporation that had not filed its certificate of incorporation did not yet exist and lacked capacity to contract). “ ‘It is well-settled under contract formation law in New York that there must be two parties to a contract.... If one of the parties is wanting, then one of the formal constituents of a legal transaction is absent.’ ” Animazing Entertainment, Inc. v. Louis Lofredo Associates, Inc., 88 F.Supp.2d 265, 270 (S.D.N.Y.2000) (quoting International Sport Divers Ass’n v. Marine Midland Bank, N.A., 25 F.Supp 2d 101, 112 (W.D.N.Y.1998)). In its complaint, Frosch alleges that LLC is a nonexistent entity. Accepting this allegation as true, LLC is a nonexistent entity that cannot be bound by a contract; accordingly, Frosch’s fifth and sixth claims for relief must be dismissed. b. Whether YTC Is Bound by the Agreement Frosch advances two arguments as to why YTC is bound by the Agreement. First, it contends that the contract is enforceable as written, because'the reference in the contract to LLC is a mere “misnomer” for YTC. Second, Frosch argues alternatively that reformation is warranted based either on YTC’s fraud or the parties’ mutual mistake. (1) Whether YTC Is Bound Under the “Misnomer” Rule “Under New York law, a contract entered into by a corporation under a ‘colloquial title’ is enforceable by either party, and ‘the misnomer is held unimportant.’ ” Spanierman Gallery, PSP v. Love, 320 F.Supp.2d 108, 111-12 (S.D.N.Y.2004) (citing Mail & Express Co. v. Parker Axles, Inc., 204 A.D. 327, 198 N.Y.S. 20, 21 (1923)); see also Quebecor World (USA), Inc. v. Harsha Associates, L.L.C., 455 F.Supp.2d 236, 241-42 (W.D.N.Y.2006) (“[T]he general rule is that ‘[w]here there is a misnomer ‘of the corporation in the contract or obligation sued on, the corporation may sue or be sued, and recovery may be had by or against it, in its true and proper corporate name,’ ” citing Walker v. Smith, 257 F.Supp.2d 691, 698 (S.D.N.Y.2003)); In re D & B Construction of Westchester, Inc., 875 N.Y.S.2d 819, 2008 WL 4809405, *8 (N.Y.Sup.Ct. Nov. 3, 2008) (Unpub. Disp.) (“ ‘[I]t has been long held that a corporation may be known by several names in the transaction of its business, and it may enforce and be bound by contracts entered into in an adopted name other than the regular name under which it was incorporated.’ In short, ‘[a] contract entered into by a corporation under an assumed name may be enforced by either of the parties. If the entity of the corporation can be ascertained from the instrument itself, the misnomer is held unimportant; but, if not, evidence may be introduced ... to establish what particular corporate entity was intended’ ” (citations omitted)); Boisgerard v. New York Banking Co., 2 Sand. Ch. 23, 25 (1844) (“There is no doubt of the identity of the association described in this contract, and the misnomer therefore does not vitiate the transaction”). “Accordingly, absent an allegation that, at the time of the contract, a plaintiff was under an actual misapprehension that there was some other, unincorporated group with virtually the same name as that of the actuái business entity, ‘the Court will not permit the [parties] to capitalize on [a] technical naming error in contravention of the parties’ evident intentions.’” Quebecor World (USA), Inc., 455 F.Supp.2d at 242 (citing Spanierman Gallery, 320 F.Supp.2d at 112). Frosch argues that the naming of LLC in the contract was a mere “misnomer” and that there is no dispute YTC was the party intended to be bound. Defendants counter that Frosch has not properly alleged that LLC was “a simple misidenti-fication, ... assumed name, or ‘colloquial title/ ” of YTC. They note that LLC’s full name, as reflected in the Agreement, is “YTC Travel LLC,” but that Frosch seeks to bind ‘Tour Travel Center, Inc.” Defendants contend these “differences are far too substantial to be [denominated] a mere ‘misnomer.’ ” The court cannot agree. YTC’s argument elevates form over, substance and .disregards the rationale underlying the “misnomer” rule. As defendants note, the misnomer rule is most frequently applied in situations where a plaintiff discovers that the entity defendant named as the party to a contract was mistakenly named under a “colloquial title” or trade name different than the legal name of the entity, and seeks to hold the individual officer who executed the contract on behalf of the corporation liable. See, e.g., Quebecor World (USA), Inc., 455 F.Supp.2d at 242 (plaintiff sought to hold an individual defendant personally liable under a contract because he signed on behalf of “Harsha & Associates” rather than in the entity’s true name, “Harsha Associates, LLC”); Spanierman Gallery, PSP, 320 F.Supp.2d at 112 (plaintiff sought to hold an individual defendant personally liable' on a contract because he signed on behalf of “R.H. Love Galleries” rather than “R.H. Love Galleries,"Inc.”). Courts typically conqlude that “[t]he use of a trade name, similar to [a business entity’s] legal name will not replace corporate liability with personal liability on behalf of officers and directors,” Walker, 257 F.Supp.2d at 698, because it would be inequitable to permit a plaintiff to “capitalize on [a] technical naming error in contravention of the parties’ evident intentions,” Spanierman Gallery, 320 F.Supp.2d at 112. This is particularly true where “the identity of the corporation is apparent.” 7 Fletcher Cyclopedia of the Law of Corporations, § 3014 (2014). The courts thus allow the suit to proceed against the intended entity rather than the individual. The same rationale applies with equal force in the case at bar. Here, there is little doubt as to the identity of the corporate entity that was the intended party to the contract. As alleged in the complaint, in the five years preceding entry into the Agreement, Leib-man maintained regular contact with Weatherhead, whom he knew to be YTC’s president and CEO. Leibman traveled to YTC’s Arizona headquarters to meet with Weátherhead and YTC shareholders during the course of negotiations. While these negotiations and meetings were in progress, there was allegedly no confusion regarding the fact that any business relationship formed would be between Frosch and YTC. Significantly, Frosch’s allegations are supported by the terms of the Agreement. It states that Frosch’s coun-terparty has an office at 414 South Mill Avenue, Tempe, Arizona 85281, and is an independent retail travel agency. It also states that Weatherhead is its CEO and Brenda Weatherhead, Robin [YTC’s COO], Jactó [YTC’s CFO], Chris [YTC’s- CIO], and Shane [YTC’s implementation and training officer] are its senior management team. These statements describe YTC. Where, as here, the identity of the corporation that was the intended party can be ascertained from the contract, the misnomer is “held unimportant,” and the “contract ... may be enforced by either of the parties.” Mail & Express Co., 198 N.Y.S. at 21 (“A contract entered into by a corporation under an assumed name may be enforced by either of the parties. If the entity of the corporation can be ascertained from the instrument itself, the misnomer is held unimportant...”). Because it is clear, based on the terms of the Agreement, that YTC was the intended party, the court will not permit it to “capitalize on [a] technical naming error in contravention of the parties’ evident intentions.” Spanierman Gallery, 320 F.Supp.2d at 112. The court therefore concludes that Frosch has plausibly alleged that YTC can be held liable on the contract as written. See, e.g., Quebecor World (USA), Inc., 455 F.Supp.2d at 242 (“Although Quebecor repeatedly argues that defendants have failed to show that Harsha & Associates is the same entity as Harsha Associates, L.L.C., the fact remains that neither the complaint nor plaintiffs other submissions contain any indication that Quebecor was misled about the identity of the other party to the printing contract, or that the parties did not share a- mutual understanding in that respect. I therefore see no basis for subjecting [the individual .who signed the contract] to personal liability based on the slight variance between the name on the contract and that of the ‘real’ entity”); Spanierman Gallery, PSP, 320 F.Supp.2d at 112 (“Here, it is beyond dispute that ‘R.H. Love Galleries’ was intended to designate defendant R.H. Love Galleries, Inc. Importantly, Plaintiffs have not alleged that, at the time of the contract, they were under any actual misapprehension that there was some other, unincorporated group with virtually the same name as R.H. Love Galleries, Inc. Absent such an allegation, the Court will not permit the Plaintiffs to capitalize on that technical naming error in contravention of the parties’ evident intentions”); Assos Construction Corp. v. 1141 Realty LLC, 120 A.D.3d 1151, 993 N.Y.S.2d 23, 24 (2014) (“Contrary to defendant project owner’s contention, the documents detailing the scope of steel work to be performed by plaintiff subcontractor and setting a price for the work, are valid contracts that are binding on ■ defendant. The ■ documents were signed by defendant’s manager, and a mere misnomer in the name of the corporate entity will not free it from liability under the contract. The contracts are sufficiently definite and evince an obligation on the part of defendant to pay the price stated for the work. This is not inconsistent with the contract between defendant and the general contractor which specifically permitted defendant to contract directly with other contractors”); In re D & B Construction of Westchester, Inc., 2008 WL 4809405 at *8 (“In short, ‘[a], contract entered into by a corporation under an assumed name may be enforced by either of the parties. If the entity of the corporation can be ascertained from the instrument itself, the misnomer is held unimportant; but, if not,, evidence may be introduced ... to establish what particular corporate entity was intended.’ Here, there is no doubt as to what corporate entity was intended. Mitrione knew that he was dealing with the D & B entity that was located át 1000 Main Street, New Rochelle, New York. Since the Construction Contract is the valid contract of D & B Westchester, it follows that it is not the individual contract of Brescia”). (2) Whether YTC Is Bound Because the Contract Should Be Reformed Alternatively, Frosch' seeks reformation of the contract to name YTC. This claim is based on fraud and/or mutual mistake. (a) Legal Standard Governing Reformation Under New York Law “[R]eformation is available in cases of fraud and mutual mistake.” AMEX Assurance Co. v. Caripides, 316 F.3d 154, 161 (2d Cir.2003) (citing Chimart Assocs. v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231 (1986); George Backer Mgmt. Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 385 N.E.2d 1062 (1978)). See also John Hanpock Mutual Life Insurance Co. v. Carolina Power & Light Co., 717 F.2d 664, 671 (2d Cir.1983) (“Under New York law, a contract may be reformed if there is mutual mistake or a mistake by one party coupled with fraud or inequitable conduct of the other party,” citing Brandwein v. Provident Mutual Life Insurance Co., 3 N.Y.2d 491, 496, 168 N.Y.S.2d 964, 146 N.E.2d 693 (1957)); NGM Ins. Co. v. 52 Liberty, No. 7:09-CV-09003, 2010 WL 6501383, *8 (S.D.N.Y. Dec. 6, 2010) (“Under New York law, reformation of a contract is warranted only in cases of mutual mistake — where the written agreement contradicts the intent of both parties — or in cases of fraud — where the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not' properly express that agreement”). “A claim for reformation of a written instrument must set forth ‘(1) an agreement other than that expressed in the instrument; (2) the written instrument sought to be reformed; and (3) mutual mistake of the parties, or the mistake-of one party and the fraud of another.’ ” Citibank, N.A. v. Morgan Stanley & Co. International, PLC, 724 F.Supp.2d 407, 415 (S.D.N.Y.2010) (quoting Linzer Products Corp. v. Sekar, 499 F.Supp.2d 540, 549 (S.D.N.Y.2007)). “As used in the doctrine, of mutual mistake, mistake means being in error in one’s belief as to what the contract states.” AMEX Assurance Co., 316 F.3d at 162 (internal quotation marks omitted) (citing Restatement (Second) of Contracts § 155). “Reformation or rescission may be appropriate where a writing does not set forth the actual agreement of the parties.” ’ Travelers Indem. Co. of Illinois v. CDL Hotels USA, Inc., 322 F.Supp.2d 482, 495 (S.D.N.Y.2004). It is an appropriate remedy where the wrong party is named in an agreement. See EGW Temporaries, Inc. v. RLI Ins. Co., 83 A.D.3d 1481, 1482, 919 N.Y.S.2d 752 (2011) (holding that the lower court properly reformed a payment bond, to reflect the intended, recipient, rather than t)ie one incorrectly named on the bond). “New York law .... establishes a ‘heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties, and a correspondingly high order of evidence is required to overcome that presumption.’ ” Barbagallo v. Marcum LLP, 820 F.Supp.2d 429, 441 (2011) (quoting Chimart Assocs., 66 N.Y.2d at 574, 498 N.Y.S.2d 344, 489 N.E.2d 231). Plaintiff must establish that reformation is appropriate by “clear and convincing evidence.” Id. See also Lambert v. Lambert, 142 A.D.2d 557, 530 N.Y.S.2d 223 (N.Y.App.Div.1988) (an agreement “cannot be reformed except upon - clear and convincing proof of mutual mistake, fraud in the inducement or unilateral mistake”). The Second Circuit has held that the party-seeking reformation must “show in no uncertain terms”-not only that there was fraud or- a mistake, but also “exactly what was really agreed upon between the parties.” Collins v. Harrison-Bode, 303 F.3d 429, 435 (2d Cir.2002) (internal quotations omitted). (b) Whether Frosch Has Plausibly Al