Plaintiff alleges that it was prevented from participating in the acquisition of defendant Nexcycle. Specifically, it contends that its commitment letter was improperly rejected, in breach of the underlying leveraged buyout proposal (the agreement). The complaint and plaintiff's own evidentiary submissions demonstrate that its commitment letters failed to conform to the unambiguous terms of the agreement in material respects, and plaintiff cannot invoke the purported custom and practice of the industry to excuse the deviation (see Chimart Assoc. v. Paul, 66 N.Y.2d 570, 572-573; Lester Morse Co. v. 3 Hanover Square Owners Corp., 156 A.D.2d 229, 230; Salzman v. Bowyer Prods., 42 A.D.2d 531). Defendants' submissions were properly considered on the motion since they clearly establish that defendants did not agree to the modifications alleged by plaintiff (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275;Acquista v. New York Life Ins. Co., 285 A.D.2d 73, 76). Thus, defendants were relieved of their obligation to perform (see e.g. Special Situations Fund III, L.P. v. Versus Technology, 227 A.D.2d 321, lv denied 88 N.Y.2d 815), and the cause of action for breach of contract was properly dismissed. Defendants were entitled to enforce the terms of the agreement; the implied covenant of good faith and fair dealing may not be construed to nullify existing contractual provisions or contrive novel contract rights (see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 304; Fesseha v. TD Waterhouse Inv. Servs., 305 A.D.2d 268). Nor is a claim predicated on unjust enrichment cognizable where the parties' rights and obligations are governed by a valid and enforceable contract (see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388;DePinto v. Ashley Scott, Inc., 222 A.D.2d 288, 289). Likewise, "a contract action may not be converted into one for fraud by the mere additional allegation that the contracting party did not intend to meet its contractual obligation" (Bronx Store Equip. Co. v. Westbury Brooklyn Assoc., L.P., 280 A.D.2d 352; see McMahan Co. v. Bass, 250 A.D.2d 460, 463, lv denied, lv dismissed 92 N.Y.2d 1013; Gordon v. Dino De Laurentiis Corp., 141 A.D.2d 435, 436). Finally, plaintiff has pleaded "nothing that demonstrates an intent to enter into anything other than a simple contractual relationship" (Zeising v. Kelly, 152 F. Supp.2d 335, 348 [SDNY]) that never materialized, obviating any claim for breach of fiduciary duty (cf. Precision Testing Labs., Ltd. v. Keynon Corp. of Am., 644 F. Supp. 1327, 1342-1343 [SDNY] [oral joint venture]).
Motion seeking leave to strike certain references in reply brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.