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Alain E. KALOYEROS, Ana R. Londergan, and Gelest, Inc., Plaintiffs, v. The RESEARCH FOUNDATION OF the STATE UNIVERSITY OF NEW YORK, Defendant.
Plaintiffs Alain E. Kaloyeros, Ana R. Londergan and Gelest, Inc. (“Gelest”) commenced this action on February 28, 2020 against defendant Research Foundation of the State University of New York (“Foundation” or “RF”). Plaintiffs sue to recover damages on account of the Foundation's alleged failure to pursue commercialization of their patented invention. The complaint, as amended (see NYSCEF Doc No. 22 [“Complaint”]), alleges claims for breach of contract and breach of fiduciary duty.1
In lieu of answering, the Foundation moves for dismissal under CPLR 3211 (a) (5) and (7), arguing that the Complaint fails to state a claim for relief, and plaintiffs’ exclusive remedy was a CPLR article 78 proceeding that is now time-barred.
Plaintiff Alain Kaloyeros was, at pertinent times, a professor of physics employed by the State University of New York (“SUNY” or “University”), and co-plaintiff Ana Londergan was a Ph.D. student working in his research group (see Complaint, ¶¶ 1, 11-12). Gelest is a Pennsylvania-based materials science and technology company founded by nonparty Barry C. Arkles (see id., ¶¶ 1, 13).
A. The Foundation and SUNY
The Foundation is a not-for-profit corporation chartered by the New York State Board of Regents that is affiliated with SUNY and provides essential management and administrative services, including services pertaining to the management and commercialization of intellectual property (see id., ¶ 3). The relationship between SUNY and the Foundation is governed by a 1977 agreement entered into “to formalize the relationships, duties, and responsibilities of both the Foundation and State University in regard to the sponsored program activities of the University” (NYSCEF Doc No. 24 [“1977 Agreement”], Preface).
The 1997 Agreement makes the Foundation responsible for managing and administering sponsored research programs on behalf of SUNY (see id., Part A). In so doing, the Foundation “shall, as far as may be practicable, ․ be consistent with administrative policies applicable to the University” (id., § 5). Further, SUNY's “Patent and Copyright Policy and implementation thereof shall govern all patent and copyright matters arising out of any sponsored programs covered by [the 1977 Agreement]” (id., § 14; see Complaint, ¶¶ 3, 21-25, 108; see also NYSCEF Doc No. 25 [“RF IP Policy”]).
Plaintiffs allege that the Foundation “holds title to intellectual property developed within the SUNY system and is responsible for managing and licensing those properties on behalf of SUNY and inventors and in accordance with the [SUNY Patents, Inventions and Copyright Policy]” (Complaint, ¶ 3; see also id., ¶ 111). The Patents, Inventions and Copyright Policy (“Policy”) is a state regulation codified in 8 NYCRR 335.28.
Under the version of the Policy in effect at relevant times,2 all inventions made by faculty, staff or students using SUNY resources at any State-operated campus “shall belong” to SUNY, and any patents or patent applications resulting from the research “shall [be] assign[ed] ․ to or as directed by [the] State University” (¶ [b]).
“[I]n recognition of the meritorious services of the inventor and in consideration of the inventor's agreement that the invention shall belong to the university, [SUNY] will make provision entitling the inventor ․ to a ․ share in any proceeds from the management and licensing of such invention to the extent of 40 percent of the gross royalty paid” (id., ¶ [c]).
The Policy also contemplates that SUNY may “determine not to file a patent application” to cover an invention or determine not to “continue efforts at marketing,” but these decisions “shall be arrived at, in consultation with the inventor,” within a specified time frame (id., ¶ [f]). “In every instance in which [SUNY] determines not to ․ continue efforts at marketing, ․ all of [SUNY's] rights to the invention shall be released to the inventor” (id.).
Finally, “[i]n all cases, any person is entitled to request an exception or waiver to the provisions of this [Policy],” and, in that connection, “shall have the right to appear ․ before the patents and inventions policy board” of the University, which “shall prepare” a recommendation to the SUNY Chancellor for his or her final determination (id., ¶ [g]).
B. The Invention
Kaloyeros, Londergan and Arkles invented a process in 2000 for creating ultra-thin layers of cobalt for interconnecting transistors on an integrated circuit (“Invention”) (see Complaint, ¶¶ 1, 69-71). The two plaintiff-inventors affiliated with SUNY, Kaloyeros and Londergan (collectively, “SUNY Plaintiffs”), assigned their rights in the Invention to the Foundation in December 2000 (see id., ¶¶ 1, 6, 98; NYSCEF Doc No. 33 [“Instrument of Assignment”]; 35 USC § 261). “The assignment was made in accordance with the Policy, and in consideration of the [RF's] ongoing promise to manage and license the intellectual property on behalf of SUNY and the Inventors in accordance with the Policy” (Complaint, ¶ 99).
A patent application covering the Invention was filed in January 2001 and granted in February 2002 (see id., ¶ 76). As a result, the Foundation acquired an ownership interest in U.S. Patent No. 6,346,477 (see NYSCEF Doc No. 34 [“477 Patent”]).
The third co-inventor, Arkles, assigned his interest in the Invention to Gelest, making the Foundation and Gelest co-owners of the 477 Patent (see id., ¶¶ 6-7, 79-80; 35 USC § 262). Gelest alleges that Arkles's assignment was made pursuant to a 1994 Technology Management Agreement (“TMA”) between Gelest and the Foundation (see Complaint, ¶ 79; NYSCEF Doc No. 32). “The collaboration between” Kaloyeros and Arkles is said to have “led to the issuance of nine patents, all of which have been jointly owned by Gelest and the [RF] pursuant to the terms of the [TMA]. Two of these inventions, bearing U.S. patent nos. 5,919,531 and 6,090,709, have been commercialized pursuant to the [TMA] and the Policy” (Complaint, ¶¶ 63-64).
C. The Alleged Infringement
In the summer of 2018, Kaloyeros and Arkles learned that semiconductor manufacturers had begun using cobalt interconnects (see id., ¶ 81). Plaintiffs assert that “[t]he use of the Invention is the only practicable way to produce cobalt components appropriate for use in microchips” and, consequently, “any company that produce[d] microchips containing cobalt on a commercial scale necessarily [was] infring[ing] on the 477 Patent” (id.). Before this discovery, plaintiffs “were not aware of any commercial applications for the Invention which would have given rise to potential licensing opportunities. However, the adoption of cobalt by microchip manufacturers ․ meant that the Invention now had significant commercial value” (id., ¶ 82).
In or about September 2018, Arkles, acting on behalf of all plaintiffs, “notified the [Foundation] that third parties were engaging in direct and contributory infringement of the 477 Patent and indicated that Gelest was prepared to act on behalf of the [co-owners] in order to enforce the 477 Patent” (id., ¶ 83). The Foundation responded that “it did not have funds to pursue infringers of jointly owned technology and was reluctant to pursue any infringers with whom the [Foundation] had or was hoping to enter into a collaborative relationship” (id., ¶ 84).
Gelest requested in January 2019 that the Foundation “release its rights in the Invention” back to the SUNY Plaintiffs, so the three co-inventors could pursue licensing of the Invention, but the Foundation refused (id., ¶¶ 86-88). Gelest later offered to purchase the SUNY Plaintiffs’ interest in the Invention from the Foundation, to no avail (see id., ¶¶ 89-90).
Gelest “continued to press” the Foundation “to allow Gelest to enforce the 477 Patent against the infringing third parties at its own expense” (id., ¶ 91). Despite additional discussions between the parties, they were unable to reach agreement “regarding a path forward on licensing the Invention and enforcing the 477 Patent” (id., ¶ 92).
D. This Action
Plaintiffs commenced this action on February 28, 2020, alleging that the Foundation “has failed ․ to meet its contractual and fiduciary obligations because of its ongoing failures to market, license, or commercialize the Invention” (id., ¶ 8). “Despite being put on notice ․ that third parties have been infringing the patent associated with the Invention, the [Foundation] has failed ․ to enforce the [477 P]atent or to negotiate a license with the infringing parties” (id.; see id., ¶ 9, 85).3 The Complaint alleges four causes of action: (1) breach of contract, based on the Policy (SUNY Plaintiffs); (2) breach of contract, based on the TMA (Gelest); (3) breach of fiduciary duty (all plaintiffs); and (4) breach of contract under a third-party beneficiary theory (SUNY Plaintiffs).
The Foundation moves for dismissal under CPLR 3211 (a) (7) for failure to state a cause of action, arguing that it owes no contractual or fiduciary duties to plaintiffs (see NYSCEF Doc No. 38 [“Moving Mem”], p. 2). The Foundation further argues that, “to the extent that any redress may have been available to [plaintiffs] for the Foundation's alleged inaction in commercializing the Invention or enforcing the 477 Patent ․, such relief was available only via an Article 78 proceeding, that is now time-barred” (id.).
Oral argument was held on April 7, 2021 (see NYSCEF Doc No. 45 [“Oral Arg Tr”]), and this Decision & Order follows.
On a motion to dismiss made pursuant to CPLR 3211 (a) (7), the courts' “sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Polonetsky v Better Homes Depot, 97 NY2d 46, 54  [internal quotation marks and citation omitted]).
The pleading “is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference” (State v Jeda Capital-Lenox, LLC, 176 AD3d 1443, 1445 [3d Dept 2019] [internal quotation marks and citation omitted]). But the Court need not “accept as true legal conclusions or factual allegations that are either inherently incredible or flatly contradicted by documentary evidence” (1455 Washington Ave. Assoc. v Rose & Kiernan, 260 AD2d 770, 771 [3d Dept 1999] [internal quotation marks and citations omitted]).
“Dismissal ․ is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142  [citations omitted]).
A. Breach of Contract
1. Patent and Inventions Policy (SUNY Plaintiffs, Count I)
By their first cause of action, the SUNY Plaintiffs seek to recover damages for the Foundation's alleged breach of an implied contract formed pursuant to the Policy.
Specifically, the SUNY Plaintiffs allege that the Policy includes express promises concerning the management and commercialization of intellectual property developed at SUNY, with affirmative, reciprocal obligations on their part. The SUNY Plaintiffs allegedly “satisfied their obligations ․ by disclosing the Invention and assigning their rights to the Invention and the resultant 477 Patent to [the Foundation]” (Complaint, ¶ 122). In return, the Foundation “agreed to continuously manage and license the Invention, and was obligated to make provision entitling [the SUNY Plaintiffs] to share in the proceeds from the management and licensing of the Invention” (id., ¶ 123).
The Foundation allegedly breached its contractual obligations to the SUNY Plaintiffs by its ongoing failures to: (1) “market the Invention through licensing and other arrangements” (id., ¶ 124); (2) “enforce or permit the enforcement of the 477 Patent against third-party infringers” (id.); (3) “consult with [the SUNY Plaintiffs] with respect to the marketing of the Invention” (id., ¶ 125); and (4) “release its rights to the Invention” after determining “not to continue efforts at marketing” (id.).
“To recover for a breach of contract, a party must establish the existence of a contract, the party's own performance under the contract, the other party's breach of its contractual obligations, and damages resulting from the breach” (LaPenna Contr., Ltd. v Mullen, 187 AD3d 1451, 1453 [3d Dept 2020] [internal quotation marks and citation omitted]). “’To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound’ ” (Resetarits Const. Corp. v Olmsted, 118 AD3d 1454, 1455 [4th Dept 2014], quoting 22 NY Jur 2d, Contracts § 9).
a. Contract Formation
In contending that the Policy is the source of enforceable contract rights, the SUNY Plaintiffs rely on a line of cases holding that “workplace policies — including those that govern a university's relationship with its faculty — can create binding contracts” (Joshi v Trustees of Columbia Univ. in City of New York, 2018 WL 2417846, *5, 2018 US Dist LEXIS 89280, *13 [S.D. N.Y., May 29, 2018, No. 17-cv-4112 (JGK)], citing O'Neill v New York Univ., 97 AD3d 199, 212 [1st Dept 2012]; accord Monaco v New York Univ., 145 AD3d 567, 568 [1st Dept 2016]; see Mulder v Donaldson, Lufkin & Jenrette, 208 AD2d 301, 307 [1st Dept 1995] [non-university employer]; see also Langenkamp v Olson, 628 Fed Appx 50, 52 [2d Cir 2015]).
In these cases, courts determined that the plaintiffs had alleged the existence of implied contracts formed through language in handbooks and policy manuals that included “express promise[s]” (O'Neill, 97 AD3d at 212), established mandatory duties (see Joshi, 2018 WL 2417846, *5, 2018 US Dist LEXIS 89280, *16-17) or expressly limited the employer's discretion (Mulder, 208 AD2d at 307; cf. Maas v Cornell Univ., 94 NY2d 87, 93  [“When a complaint merely recites a litany of ․ grievances couched in terms of a violation of a contractual right ․ and is devoid of any reference to the contractual basis for the rights asserted, academic prerogatives should not be channeled into a ․ contract action” (internal quotation marks and citation omitted)]).
The Foundation argues that the Policy includes no “express contractual promises,” “binding limitations” or “reciprocal affirmative obligations” (Opp Mem, pp. 7-9). According to the Foundation, the Policy is cast in permissive terms, and it provides both SUNY and SUNY inventors with broad discretion. Thus, SUNY “may” elect not to file a patent for a new invention or continue to market an existing one, and the inventors “may” request release of the invention in such cases (Policy, ¶ [f]). The Foundation also relies upon language allowing “any person” to “request an exception or waiver to the provisions of [the Policy]” (id., ¶ [g]).
The Court is unpersuaded by the Foundation's argument. Although the Policy accords discretion to SUNY and SUNY inventors in certain respects, it also includes language that, viewed in a light most favorable to plaintiffs, may be understood as giving rise to affirmative, reciprocal obligations of a mandatory nature.
As to inventors, the Policy states that all inventions made by SUNY faculty or students using University facilities (“SUNY inventors”) “shall belong” to SUNY and “shall be disclosed to [SUNY] upon request” (id., ¶ [b]). Further, SUNY inventors “shall make application for patents thereon as directed by [SUNY]” and “shall assign such applications or any patents ․ to or as directed by [SUNY]” (id.).4
For its part, “in recognition of the meritorious services of the inventor and in consideration of the inventor's agreement that the invention shall belong to the university,” SUNY “will make provision entitling the inventor” to a “share in any proceeds from the management and licensing of [the] invention” (id., ¶ [c] [emphasis added]).
Further, while the Policy accords SUNY discretion to determine whether to “continue efforts at marketing,” the Policy also includes mandatory language providing that, “[i]n every instance in which [SUNY] determines not to ․ continue efforts at marketing ․, all of [SUNY's] rights to the invention shall be released to the inventor” (id., ¶ [f] [emphasis added]).
The Court therefore concludes that the Complaint sufficiently alleges an implied contract formed through the mandatory provisions of the Policy and the SUNY Plaintiffs’ reliance thereon (see O'Neill, 97 AD3d at 212; Joshi, 2018 WL 2417846, *5, 2018 US Dist LEXIS 89280, *16; see also Seigel v. Structure Tone Org., 2020 WL 6048787, *2-3, 2020 US Dist LEXIS 189415, *3-7 [SD NY, Oct. 10, 2020, No. 19 CV 7307 (VB)] [collecting recent federal authorities]).5
b. Allegations of Breach
Contrary to the Foundation's contention, the SUNY Plaintiffs sufficiently have alleged that the Foundation breached the implied contract formed under the Policy. Specifically, the SUNY Plaintiffs allege that the Foundation breached its contractual obligation to either pursue commercialization of the Invention or relinquish ownership (see Complaint, ¶¶ 115-117, 123-125; see also Swift v New York Med. Coll., 25 AD3d 686, 688 [2d Dept 2006] [plaintiff “articulated a cognizable breach of contract claim” based on allegation that defendant-college “failed to waive ․ its right to patent and commercialize certain intellectual property discovered by ․ plaintiff”]).
The question then becomes whether the alleged contract is enforceable against the Foundation. Emphasizing that the Policy refers only to SUNY, the Foundation argues that it is not in contractual privity with the SUNY Plaintiffs (see Moving Mem, pp. 5-6).
In this regard, the SUNY Plaintiffs allege that “SUNY has delegated to the [Foundation] its ongoing contractual obligations ․ to manage and license intellectual property and to share the proceeds with inventors” (Complaint, ¶ 27). According to the SUNY Plaintiffs, this delegation is a product of the 1977 Agreement and the Foundation's own policies, and the delegation is confirmed by representations made by the Foundation to the public, to SUNY inventors and to the federal courts (see id., ¶¶ 30-45).
The Policy and the duties it imposes on SUNY were made applicable to the Foundation via the 1977 Agreement, by which the Foundation became “responsible for managing and administering sponsored research programs on behalf of SUNY” (Complaint, ¶ 21; see 1977 Agreement, Part A). The 1977 Agreement obliges the Foundation to act in a manner “consistent with administrative policies applicable to [SUNY]” (id., § 5). The 1977 Agreement further declares that the Policy “shall govern all patent ․ matters arising out of any sponsored [research] programs,” and it imposes a continuing duty on the Foundation to “modify its own patent and copyright policy [as necessary] to conform” to SUNY's policies (id., § 14).6
The SUNY Plaintiffs also rely on the Foundation's intellectual property policy, which recognizes that, “[p]ursuant to [the 1977 Agreement], RF is obligated to conduct itself in a manner consistent with all administrative policies applicable to SUNY, and is specifically committed to follow the University's Patent and Copyright Policy and implementation thereof” (RF IP Policy; see Complaint, ¶ 25). Accordingly, the “RF, with no exception, ․ adopts as its own” SUNY's patent Policy (RF Policy [emphasis added]).
The SUNY Plaintiffs’ allegation of contractual delegation also relies on representations made by the Foundation in its role as manager and administrator of SUNY's sponsored research programs (see Complaint, ¶¶ 28-45), including:
• A brochure published by the Foundation stating that, “[p]ursuant to SUNY policy and federal law, the RF holds title to intellectual property developed at SUNY” and “provides intellectual property and technology transfer services,” which include: identifying commercially viable inventions; conducting technology assessments; protecting intellectual property with patents and copyrights; providing businesses and investors with a portfolio of innovations that can be licensed or spun into start-up companies; and managing the licensing process (NYSCEF Doc No. 26, p. 2);
• A complaint filed by the Foundation in an intellectual property dispute in which the RF acknowledges that it is under a contractual obligation to commercialize intellectual property developed within the SUNY system as a result of sponsored research (see NYSCEF Doc No. 27, ¶ 9);
• A legal memorandum filed by the Foundation in an intellectual property dispute representing that the Foundation commercializes technology developed at SUNY by seeking to license the technology to others (see NYSCEF Doc No. 28, p. 2). “As a state-run institution of higher learning, a primary goal of [the] Foundation is to find the right industry partners” (id.); and
• An “Information for Inventors” web page explaining that “technology transfer professionals” from the RF will work with SUNY inventors “to develop an IP protection strategy” and then “focus[ ] on promoting [the] invention” for commercialization, whether by licensing or some other form of partnering (NYSCEF Doc No. 29, pp. 3-4).
The SUNY Plaintiffs further observe that the benefits of the alleged contract with SUNY flowed directly to the Foundation, which holds title to the 477 Patent pursuant to the Instrument of Assignment. Specifically, the SUNY Plaintiffs contend that this assignment of the Invention to RF “was made in accordance with the Policy, and in consideration of [the Foundation's] ongoing promise to manage and license the intellectual property on behalf of SUNY and the Inventors in accordance with the Policy” (Complaint, ¶ 99; see Instrument of Assignment [assignment made for one dollar “and other good and valuable consideration”]).
Liberally construing the Complaint, assuming the truth of its factual allegations and giving the SUNY Plaintiffs the benefit of all favorable inferences — as the Court must at this early stage of the litigation — the allegations are “sufficient to state a cause of action alleging breach of contract on the theory that the [Foundation] affirmatively assumed the duties of a contract which allegedly was entered into between the [SUNY Plaintiffs] and [SUNY]” (Nouveau El. Indus., Inc. v Glendale Condominium Town & Tower Corp., 107 AD3d 965, 966 [2d Dept 2013]; cf. Amalgamated Tr. Union Local 1181, AFL-CIO v City of New York, 45 AD3d 788, 790 [2d Dept 2007] [“Having failed to allege such an affirmative assumption, the plaintiffs failed to state a cause of action against the (nonparty) ․”]; see generally Contemporary Mission, Inc. v Famous Music Corp., 557 F2d 918, 924 [2d Cir 1977]).
Finally, the Foundation contends that the SUNY Plaintiffs’ exclusive remedy for any breach of the Policy is a proceeding brought under CPLR article 78, which is now time-barred (see Moving Mem, pp. 13-17).
As a general matter, a proceeding under CPLR article 78 will not lie where there is an adequate remedy available at law (see CPLR 7801 ; Matter of Art-Tex Petroleum v New York State Dept. of Audit & Control, 93 NY2d 830, 832 ). Specifically, where the CPLR article 78 proceeding concerns the rights and obligations of the parties to a contract with a public entity,7 a plenary action sounding in contract generally constitutes the appropriate remedy:
[W]here the language of the complaint asserts violations of a plaintiff's rights under a contract and the primary thrust of the allegations is in contract, a plenary action sounding in contract is the appropriate remedy. Stated differently, where the focus of the controversy is on an agency's breach of an express contractual right, or on the agency's violation of the implied obligations of good faith, fair dealing and cooperation, a contract action is the recommended remedy (Abiele Contr. v New York City Sch. Constr. Auth., 91 NY2d 1, 8 ; see Matter of Gooshaw v City of Ogdensburg, 67 AD3d 1288, 1289 [3d Dept 2009]).
Moreover, it bears emphasis that the SUNY Plaintiffs are not suing to enforce the Policy; they are suing to enforce the implied contract allegedly formed through the mandatory, reciprocal obligations of the Policy and their detrimental reliance thereupon. Accordingly, the Court rejects the Foundation's contention that “Plaintiffs’ primary claim is that the Foundation violated the Policy, which is a SUNY Regulation” (Moving Mem, p. 13).
Having determined that the Complaint states a viable claim against the Foundation for breach of contract, the Court further concludes that the claim properly was brought “by way of a plenary action” (Swift, 25 AD3d at 688; cf. Matter of Luft v Clark, 2010 NY Slip Op 31488[U] [Sup Ct, Suffolk County 2010] [challenge to administrative determination rendered by SUNY under the Policy]).
Finally, the Court is unpersuaded by the Foundation's reliance on the provisions of the Policy that allow “any person ․ to request an exception or waiver” (¶ [g]). The SUNY Plaintiffs are not seeking an exception or waiver; rather, as stated previously, they are suing to enforce the mandatory provisions of the Policy, as incorporated into the alleged contract.
The Court concludes that the SUNY Plaintiffs sufficiently have stated a claim for breach of contract under Count I (see Swift, 25 AD3d at 688). Accordingly, the branch of the Foundation's motion seeking dismissal of the claim must be denied.
2. Third-Party Beneficiary Theory (SUNY Plaintiffs, Count IV)
In addition to suing to enforce an implied contract, the SUNY Plaintiffs sue as alleged third-party beneficiaries of the 1977 Agreement and the Foundation's contractual promise to SUNY to market and commercialize intellectual property arising out of sponsored research (see Complaint, ¶ 138).8
To this end, the SUNY Plaintiffs allege that “[t]he contractual agreement between SUNY and the [Foundation] was not solely for SUNY's own benefit, but also was plainly intended to directly benefit inventors like Dr. Kaloyeros and Dr. Londergan, ‘in recognition of the meritorious services of the inventor and in consideration of the inventor's agreement that the invention shall belong to [SUNY],’ by making special provision for the sharing of licensing revenue derived from their inventions” (id., ¶ 114, quoting Policy, ¶ [c]).
The Foundation is said to have “breached the 1977 Agreement and the Policy by its ongoing failure to market the Invention through licensing and other arrangements and by its ongoing failure to enforce or permit the enforcement of the 477 Patent against third-party infringers,” thereby “depriv[ing] SUNY (and, in extension, the Plaintiffs) of their contractually-entitled share of any proceeds from the management and licensing of the Invention” (id., ¶ 141).
“A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [the third party's] benefit and (3) that the benefit to [the third party] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [the third party] if the benefit is lost” (State of Cal. Pub. Employees’ Retirement Sys. v Shearman & Sterling, 95 NY2d 427, 434-435  [internal quotation marks and citation omitted]).
While it is undisputed that the 1977 Agreement is a valid and binding contract between SUNY and the Foundation, the Court agrees with the Foundation that SUNY inventors are not the intended beneficiaries of the 1977 Agreement and any benefits conferred upon them by the 1977 Agreement merely are incidental to its intended purpose.
In particular, it is clear from the language of the 1977 Agreement that its purpose is to “formalize the relationships, duties and responsibilities” of SUNY, a State institution, and the Foundation, an affiliated not-for-profit corporation, in relation to fiscal, management and administrative issues pertaining to sponsored research activities (1977 Agreement, Preface). Indeed, the recitals of the 1977 Agreement go so far as to state that the Foundation's “sole purpose is to serve the University” in fulfilling its mission to the “people of the state of New York” (id., p. 6).
The Court therefore concludes that the 1977 Agreement was not adopted to benefit the SUNY Plaintiffs and other members of the SUNY community engaged in sponsored research, and that any benefit that such individuals may derive from the 1977 Agreement merely is incidental to the agreement's primary purpose of formalizing the relationship between SUNY and the affiliated not-for-profit corporation formed to assist the University in carrying out its mission (see Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 337 ; Zelber v Lewoc, 6 AD3d 1043, 1045 [3d Dept 2004]).
Accordingly, the Court concludes that the Complaint fails to state a cause of action for breach of contract under a third-party beneficiary theory (see Burns Jackson Miller Summit & Spitzer, 59 NY2d at 336; 2470 Cadillac Resources, Inc. v DHL Express [USA], Inc., 84 AD3d 697, 698 [1st Dept 2011]; see also Nanomedicon, LLC v Research Found. of State Univ. of NY, 112 AD3d 594, 596-597 [2d Dept 2013], lv dismissed 23 NY3d 1030 ).
3. TMA (Gelest, Count II)
Gelest also sues the Foundation under a contractual theory, alleging breach of the 1994 TMA. Gelest claims that the Foundation breached its “continuing obligation to diligently locate appropriate licensees ․ to license the Invention, and to distribute to Gelest its share of fees and royalties derived [there]from” (Complaint, ¶¶ 127-128). Gelest also challenges the Foundation's failure to “to take any action against third party infringers,” which allegedly “deprived Gelest of its contractually entitled [fees and royalties]” (id., ¶ 129).
In seeking dismissal, the Foundation argues principally that “the TMA does not apply to the Invention. It predates the 477 Patent by seven years, and applies to a different, 1994 invention which is defined as the only ‘TECHNOLOGY’ covered by the TMA” (Moving Mem, pp. 6-7 [citation omitted]).9 Gelest responds that the TMA was intended to cover the Invention and its provisions are, at a minimum, ambiguous concerning the scope of the agreement.
In construing the TMA, the Court must be “guided by basic principles of contract interpretation which instruct that a contract should be construed to give effect to the parties’ intent as gleaned from the four corners of the document itself, provided that its terms are clear and unambiguous” (Elmira Teachers’ Assn. v Elmira City School Dist., 53 AD3d 757, 759 [3d Dept 2008], lv denied 11 NY3d 709 ). “A written agreement that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties” (Brad H. v City of New York, 17 NY3d 180, 185  [citations omitted]; see Thompson v McQueeney, 56 AD3d 1254, 1257 [4th Dept 2008]).
Whether an agreement is ambiguous presents a question of law for the Court (see Consedine v Portville Cent. School Dist., 12 NY3d 286, 293 ). “An agreement is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion” (Ellington v EMI Music, Inc., 24 NY3d 239, 244  [internal quotation marks and citations omitted]). Ambiguity exists, however, “when specific language [in the contract] is ‘susceptible of two reasonable interpretations’ ” (id., quoting State of New York v Home Indem. Co., 66 NY2d 669, 671 ; see Brad H., 17 NY3d at 186).
The TMA, which predates the Invention by about six years, defines the term “TECHNOLOGY” to “mean the invention titled, ‘Conformal Titanium and Titanium Nitride Films and a Process for their Preparation’, which is jointly owned by [the] FOUNDATION and GELEST,” including “any and all products, processes, technical data, specifications, know-how and other directly related information” (TMA, I [A]).
Gelest recognizes that plaintiffs’ cobalt-based Invention may fall outside of the titanium-based definition of “TECHNOLOGY” set forth in the TMA (see Oral Arg Tr, p. 46), but it contends that the Invention is encompassed within the term “PATENT RIGHTS,” which is defined to “mean and include all patent applications and patents ․ [that are] jointly owned by FOUNDATION and GELEST” (TMA, I [B]). Thus, Gelest argues that “PATENT RIGHTS” are defined by reference to joint ownership, without “any express limitation to the titanium invention” (Opp Mem, p. 12). This construction of the TMA is said to follow “the intention of the FOUNDATION and GELEST to license any jointly owned invention” (TMA, p. 2).
The Court does not find Gelest's argument to be convincing. When the TMA is read “in the light of the obligation as a whole and the intention of the parties as manifested thereby” (Atwater & Co. v Panama R.R. Co., 246 NY 519, 524 ), the subject of the agreement is the licensing of “TECHNOLOGY” (see TMA, III [A]), and the term “PATENT RIGHTS” is used only in relation to the protection of covered “TECHNOLOGY” (see id., III [B]). Gelest's expansive reading of the TMA also is undercut by the fact that even jointly owned improvements to “TECHNOLOGY” will not be covered by the TMA absent the “mutual[ ] agree[ment]” of the parties (id., III [D]). Finally, the Foundation's reliance on the TMA's recitals is misplaced, as recitals “ordinarily form no part of the real contract” (22 NY Jur 2d Contracts § 248), and the unambiguous language of “the operative clause[s]” is controlling in the event of any conflict (Musman v Modern Deb, 56 AD2d 752, 753 [1st Dept 1972]).10
Nonetheless, the criterion on a motion to dismiss under CPLR 3211 (a) (7) is “’whether the proponent of the pleading has a cause of action, not whether [it] has stated one’ ” (Carlson v American Intl. Group, Inc., 30 NY3d 288, 298 , quoting Leon v Martinez, 84 NY2d 83, 88 ; accord Allen v City of New York, 49 AD3d 1126, 1127 [3d Dept 2008], lv denied 11 NY3d 705 ). The issue is “whether the facts as alleged [in the Complaint and accepted as true] fit within any cognizable legal theory” (Leon, 84 NY2d at 87-88).
Even absent a “written contract between the parties, a contract may be implied in fact where inferences may be drawn from the facts and circumstances of the case and the intention of the parties as indicated by their conduct” (AMCAT Global, Inc. v Greater Binghamton Dev., LLC, 140 AD3d 1370, 1371 [3d Dept 2016] [internal quotation marks and citation omitted], lv denied 28 NY3d 904 ; see Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Markets, Inc., 127 AD3d 1319, 1320 [3d Dept 2015]). Stated differently, an implied-in-fact contract “arise[s] from a mutual agreement and an ‘intent to promise, when the agreement and promise have simply not been expressed in words’ ” (Maas, 94 NY2d at 93-94, quoting 1 Williston, Contracts § 1:5 at 20 [4th ed 1990]). Where the parties’ conduct shows “a meeting of minds of the parties constituting an agreement” (Berlinger v Lisi, 288 AD2d 523, 524 [3d Dept 2001] [internal quotation marks and citation omitted]), the resulting contract “is just as binding as an express contract” (Jemzura v Jemzura, 36 NY2d 496, 504 ).
Gelest alleges that the collaboration between Kaloyeros and Arkles “led to the issuance of nine patents, all of which have been jointly owned by Gelest and the [RF] pursuant to the terms of the [TMA]” (Complaint, ¶ 63). Consistent with the terms of the TMA, Gelest acted on behalf of the joint owners in the filing, prosecution and maintenance of patent applications, and the parties shared equally in those costs, unless the Foundation requested that a particular patent be handled in a different manner (see id., ¶ 67; see also TMA, III [C]). And two of the jointly owned inventions allegedly were commercialized under the terms of the TMA (see Complaint, ¶ 64). “By understanding and by their continuous course of conduct, Gelest and [the Foundation] have been governed by the [TMA] in respect of all inventions developed through the collaboration of Dr. Kaloyeros and Dr. Arkles” (id., ¶ 65).11
The Court therefore concludes that the factual allegations of the Complaint sufficiently allege the existence of an implied-in-fact contract by which the terms of the TMA were extended to jointly owned inventions conceived following execution of the TMA (see Capital Med. Sys. v Fuji Med. Sys., U.S.A., 239 AD2d 743, 745 [3d Dept 1997]; see also Harris v Reagan, 161 AD3d 1346, 1348 [3d Dept 2018]; Richmor Aviation, Inc. v Sportsflight Air, Inc., 82 AD3d 1423, 1425 [3d Dept 2011]; Rocky Point Props. v Sear-Brown Group, 295 AD2d 911, 913 [4th Dept 2002]).
Based on the foregoing,12 the branch of the Foundation's motion seeking dismissal of Count II is denied.
B. Breach of Fiduciary Duty
Count III alleges that the Foundation breached fiduciary duties owed to plaintiffs. The Foundation moves for dismissal of the claim because: (1) the facts alleged in the Complaint do not establish the existence of a fiduciary relationship with any plaintiff; and (2) the alleged breaches of fiduciary duty are duplicative of plaintiffs’ contractual claims.
1. Legal Framework
“The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct” (Litvinoff v Wright, 150 AD3d 714, 715 [2d Dept 2017] [internal quotation marks and citations omitted]; see Delibasic v Manojlovic, 174 AD3d 1096, 1096-1097 [3d Dept 2019]). “A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016 (b)” (Stortini v Pollis, 138 AD3d 977, 979 [2d Dept 2016] [internal quotation marks and citations omitted]).
a. Fiduciary Relationships
A fiduciary relationship “exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. Such a relationship, necessarily fact-specific, is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19  [internal quotation marks and citations omitted]; see New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 155 AD3d 1484, 1485 [3d Dept 2017]). As Court of Appeals explained:
Generally, where parties have entered into a contract, courts look to that agreement to discover the nexus of the parties’ relationship and the particular contractual expression establishing the parties’ interdependence. If the parties ․ do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them. However, it is fundamental that fiduciary liability is not dependent solely upon an agreement or contractual relation between the fiduciary and the beneficiary but results from the relation (EBC I, 5 N.Y.3d at 19-20 [internal quotation marks, citations and alterations omitted]).
Thus, “[a] fiduciary relationship ․ exists only when a person reposes a high level of confidence and reliance in another, who thereby exercises control and dominance over him [or her]” (People v Coventry First LLC, 13 NY3d 108, 115  [internal quotation marks and citations omitted]). In contrast, an “arm's-length business relationship does not give rise to a fiduciary obligation, as the core of a fiduciary relationship is a higher level of trust than normally present in the marketplace” (Board of Mgrs. of Brightwater Towers Condominium v FirstService Residential NY, Inc., ––– AD3d ––––, –––– 2021 NY Slip Op 02128, *2 [1st Dept 2021]; see Faith Assembly v Titledge of NY Abstract LLC, 106 AD3d 47, 62 [2d Dept 2013]).
b. Relationship to Contractual Claims
“It is well established that ‘the same conduct which may constitute the breach of a contractual obligation may also constitute the breach of a duty arising out of the relationship created by contract but which is independent of the contract itself’ ” (Centerline/Fleet Hous. Partnership, L.P.—Series B v Hopkins Ct. Apts., LLC, 176 AD3d 1596, 1597-1598 [4th Dept 2019], quoting Mandelblatt v Devon Stores, 132 AD2d 162, 167-168 [1st Dept 1987]). The Court's focus when presented with parallel claims for breach of contract and breach of fiduciary duty must be “on whether a noncontractual duty was violated ․ as opposed to those imposed consensually as a matter of contractual agreement” (Apple Records v Capitol Records, 137 AD2d 50, 55 [1st Dept 1998]).
“A cause of action for breach of fiduciary duty which is merely duplicative of a breach of contract claim cannot stand” (William Kaufman Org. v Graham & James, 269 AD2d 171, 173 [1st Dept 2000] [citation omitted]). For instance, in Brooks v Key Trust Co. Natl. Assn. (26 AD3d 628 [3d Dept 2006], lv dismissed 6 NY3d 891 ), the Third Department explained:
[P]laintiff's claim is based upon the same facts and theories as his breach of contract claim and ․ [t]he allegations underlying plaintiff's fiduciary duty claim ․ are either expressly raised in plaintiff's breach of contract claim or encompassed within the contractual relationship by the requirement implicit in all contracts of fair dealings and good faith. As such, plaintiff has not set forth allegations that, apart from the terms of the contract, the parties created a relationship of higher trust than would arise from their contracts alone so as to permit a cause of action for breach of a fiduciary duty independent of the contractual duties (id. at 360 [internal quotation marks, citations and alterations omitted]).
Thus, a claim for breach of fiduciary duty will not lie where it “fails to allege conduct by defendants in breach of a duty other than, and independent of, that contractually established between the parties” (Kaminsky v FSP Inc., 5 AD3d 251, 252 [1st Dept 2004]; see NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 141 AD3d 785, 788 [3d Dept 2016]; Mawere v Landau, 130 AD3d 986, 990 [2d Dept 2015]; see also Solomatina v Mikelic, 370 F Supp 3d 420, 434 [SD NY 2019]; cf. Centerline/Fleet, 176 AD3d at 1597-1598; XpresSpa Holdings, LLC v Cordial Endeavor Concessions of Atlanta, LLC, 171 AD3d 511, 514 [1st Dept 2019]).
In alleging a fiduciary relationship with the Foundation, Gelest relies solely on the TMA, by which it appointed the Foundation “to act as its sole agent to diligently locate appropriate licensees and to license the Invention, and to act as a collection agent for ․ Gelest with respect to fees and royalties received from options holders and licensees of the Invention” (Complaint, ¶ 133). This appointment is said to have “established a relationship of trust and confidence between the parties, under which Gelest was dependent on [the Foundation] to manage and license the Invention to the mutual benefit of the parties and to collect and distribute any resulting revenue” (id., ¶ 134). As such, the relationship allegedly “gave rise to ongoing fiduciary duties independent of those contractual obligations” (id.).13
These allegations, however, ignore the reality that Gelest is a sophisticated entity that engaged in arm's-length business transactions with the Foundation regarding commercial matters. Under the circumstances, Gelest cannot plausibly allege reliance and dependence upon the Foundation's “superior knowledge and expertise” about intellectual property matters (Sebastian Holdings, Inc. v Deutsche Bank AG, 78 AD3d 446, 447 [1st Dept 2010]; see RNK Capital LLC v Natsource LLC, 76 AD3d 840, 842 [1st Dept 2010], lv denied 16 NY3d 709 ). Nor can Gelest plausibly allege that it became “vulnerab[le]” to the Foundation in a manner that “prevent[ed it] from effectively protecting itself” through appropriate contractual protections or otherwise (St. John's Univ v Bolton, 757 F Supp 2d 144, 166 [ED NY 2010] [internal quotation marks and citation omitted]). Gelest therefore has failed to allege facts showing that the parties “created their own relationship of higher trust beyond that which arises from the [terms of the TMA]” (EBC I, 5 N.Y.3d at 22).
Furthermore, Gelest has not pleaded with particularity any breaches of fiduciary duty independent of, and distinct from, the alleged breaches of the TMA (or the implied-in-fact contract formed by reference to the TMA). Gelest alleges that the Foundation breached fiduciary duties owed to it by reason of the Foundation's ongoing failure to market the Invention and/or pursue infringers of the 477 Patent (see Complaint, ¶ 135), but these are precisely the same allegations underlying Gelest's contractual claim (see id., ¶ 129).
Based on the foregoing, the Court concludes that Gelest has failed to state a claim for breach of fiduciary duty against the Foundation.
3. The SUNY Plaintiffs
The SUNY Plaintiffs allege that they “were obligated under the Policy and the Instrument of Assignment to disclose the Invention and assign their rights to the Invention and the resultant 477 Patent to the [Foundation]” (id., ¶ 131). They further allege that “[t]he Policy established a relationship of trust and confidence between the parties by requiring [them] to assign their rights to the Invention to [RF], and making [them] dependent and reliant on [RF] to manage and license the Invention to the mutual benefit of the parties. This relationship gave rise to ongoing fiduciary duties independent of those contractual obligations” (id., ¶ 132).
The Court rejects the SUNY Plaintiffs’ reliance on the Policy as a source of fiduciary duties. The Policy is, first and foremost, a State regulation adopted to govern rights to inventions made by faculty, students and others who use University resources to engage in sponsored research (see 8 NYCRR 335.28). And as a University manual or handbook, the Policy also may give rise to an implied contractual relationship with members of the SUNY community who act in reliance on its affirmative, reciprocal promises (see Part A.1, supra).
But the SUNY Plaintiffs offer no plausible basis for inferring the existence of additional common-law duties that extend beyond the limited rights granted to them via the Policy.14 To be sure, the State's regulatory scheme may leave SUNY inventors with only a limited consultative role in the commercialization of their inventions and make them dependent on SUNY and/or the Foundation to generate proceeds from their inventions, but that is a product of the State's duly-adopted regulatory scheme.
Moreover, there is nothing in the Policy that obliges SUNY or the Foundation to act primarily for the benefit of SUNY inventors. One object of the Policy is to recognize, encourage and aid inventors within the SUNY community (see ¶ [a] ), but the Policy also is directed at ensuring that the public derives a benefit from inventions developed using State resources, promoting “cooperation with government agencies and private industry,” and “contributi[ng] to the economic well-being of the State of New York and of the Nation” (id.). Thus, in carrying out the Policy, SUNY and the Foundation also are obliged to act in their own interests, as well as in the public interest, and not merely to advance the pecuniary interests of SUNY inventors (see 330 Acquisition Co. v Regency Sav. Bank, 306 AD2d 154, 155 [1st Dept 2003]).
The Court therefore concludes that the allegations of the Complaint are insufficient to establish a fiduciary relationship between the Foundation and the SUNY Plaintiffs.
Based on the foregoing,15 it is
ORDERED that defendant's motion to dismiss is granted to the limited extent of dismissing claims for breach of fiduciary duty (Count III) and breach of contract under a third-party beneficiary theory (Count IV), and the motion is otherwise denied; and it is further
ORDERED that, within thirty (30) days from the date of this Decision & Order, defendant shall serve an answer to plaintiffs’ Complaint; and finally it is
ORDERED that a remote preliminary conference shall be scheduled, and the parties are directed to confer in advance of such conference regarding the matters set forth in Commercial Division Rule 8, as well as the use of mediation or other forms of alternative dispute resolution to bring about an early resolution of this action.
This constitutes the Decision & Order of the Court, the original of which is being uploaded to NYSCEF for filing and entry by the Albany County Clerk. Upon such entry, counsel for plaintiffs shall promptly serve notice of entry on all other parties entitled thereto.
1. The original complaint also named the State University of New York as a defendant. However, plaintiffs discontinued the action against the State University in favor of pursuing a claim in the New York State Court of Claims (see Claim No. 135708 [Collins, J.]).
2. The Policy was revised effective November 23, 2016, but the prior version of the Policy governs intellectual property disclosed and assigned before such date (see 8 NYCRR 335.28 [h] ).
3. Plaintiffs assert that “[t]he 477 Patent expired on January 9, 2021, foreclosing any possibility of future licensing revenue” (NYSCEF Doc No. 40 [“Opp Mem”], p. 5; see also Complaint, ¶ 78).
4. Inasmuch as the SUNY Plaintiffs allege that they followed the Policy by disclosing the Invention and promptly assigning it to the Foundation (see Complaint, ¶ 122), the Court is satisfied that the Complaint sufficiently alleges their awareness of, and reliance on, the Policy (see O'Neill, 97 AD3d at 212 [“we can infer petitioner's reliance on NYU's policies, given the complaint's allegations of his compliance with those policies by reporting his concerns of suspected research misconduct. At this early stage of the litigation, these allegations are sufficient.”]).
5. At oral argument, the Foundation conceded that there is no meaningful distinction between the policies of a private university, as codified in a handbook or policy manual, and the propriety policies of a public university, as codified in an agency regulation (see Oral Arg Tr, pp. 19-20). Moreover, the principles of contract formation relied upon by the SUNY Plaintiffs are not limited to the relationship between academic employers and their faculty (see Mulder, 208 AD2d at 307).
6. The 1977 Agreement also contemplates that the Foundation shall serve as the employer of any research personnel other than SUNY employees who are “necessary for the conduct of the program” (id., § 4).
7. As stated previously, the Foundation is a not-for-profit corporation chartered by the Board of Regents, not a public corporation.
8. Although the claim is not expressly limited to the SUNY Plaintiffs, it is apparent that Count IV is inapplicable to Gelest.
9. At oral argument, the Foundation appeared to disclaim this line of argument and, instead, rely on the argument that the Invention does not fall within the TMA because it was not the product of a collaboration between Kaloyeros and Arkles due to the involvement of a third inventor, Londergan (see Oral Arg Tr, pp. 51-58). Following oral argument, the Foundation wrote to the Court to advise that its position with respect to the TMA “is as stated” in their written submissions (see NYSCEF Doc No. 46). Plaintiffs objected to the Foundation's purported attempt to withdraw the admissions allegedly made by it regarding the scope of the TMA in connection with its new argument (see NYSCEF Doc No. 47, citing Oral Arg Tr, pp. 57-58). For the reasons stated below, the Court finds the relevant terms of the TMA to be clear and unambiguous, thus rendering its construction a pure question of law. The Court therefore declines to rely on the Foundation's alleged concessions as a basis for construing the TMA.
10. This is not to say that the Court believes that the parties’ declared “intention ․ to license any jointly owned invention in the most expeditious manner for the public benefit” (TMA, p. 2) necessarily is inconsistent with a construction of the TMA that limits its scope to the titanium-based invention defined as “TECHNOLGY.” In particular, the recital clause may be understood as expressing the parties’ intention to extend the TMA (or enter into new technology management agreements) with respect to future jointly owned inventions.
11. The Foundation appears to have conceded at oral argument that the relationship between it and Gelest with respect to the other nine patents was “contractual” in nature (Oral Arg Tr, pp. 55-56). And if the relationship were otherwise, Gelest and the Foundation arguably would be joint venturers (see Gramercy Equities Corp. v Dumont, 72 NY2d 560, 567 ; see generally Lebedev v Blavatnik, 193 AD3d 175, 185 [1st Dept 2021]).
12. The Court is satisfied that Gelest has adequately alleged a breach of this implied contract based on the Foundation's alleged failure to diligently pursue commercialization of the Invention (see Complaint., ¶¶ 127-129).
13. Given the pleading requirement of CPLR 3016 (b), the Court is limited to the facts alleged with particularity in the Complaint in assessing the legal sufficiency of the claim for breach of fiduciary duty.
14. Insofar as the SUNY Plaintiffs seek to enforce the Policy under a breach-of-fiduciary-duty theory, the claim is redundant of their contractual cause of action.
15. To the extent not specifically referenced herein, the parties’ remaining contentions have been considered and found to be without merit.
Richard M. Platkin, J.
Response sent, thank you
Docket No: 902705-20
Decided: May 06, 2021
Court: Supreme Court, Albany County, New York.
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