the hallmarks of an ERISA plan. The Court thus concludes that the Vested Producer Plan is a “plan” within the meaning of ERISA. Because the Vested Producer Plan falls within the statutory and regulatory meaning of an “employee pension benefit plan,” and because it is a “plan” within the meaning of ERISA, the Vested Producer Plan is governed by ERISA, and Plaintiff is entitled to any benefits for which he is eligible under the plan. Because Count III, seeking damages for breach of contract, was pleaded in the alternative to Count I, (see Compl. ¶¶ 69-79), Count III is dismissed, without prejudice to renew the claim should this or another court subsequently determine that the Vested Producer Plan is not covered by ERISA. See Arditi v. Lighthouse Int’l, 676 F.3d 294, 299 (2d Cir. 2012) (<HOLDING>) (alteration omitted) (quoting Montefiore Med.
holding that claims for misrepresentation under texas insurance code were preempted because the plaintiffs sought to recover benefits under an erisa plan holding that the safety valve provision of 18 usc  3553f is not unconstitutional under apprendi 530 us 466 120 sct 2348 147 led2d 435 or blakely v washington 542 us 296 124 sct 2531 159 led2d 403 2004 holding that after blakely v washington 542 us 296 124 sct 2531 159 led2d 403 2004 statutory maximum is the maximum that this particular defendant can face in light of his criminal history and the facts found by a jury or admitted by the defendant holding that state law breach of contract claims were preempted by erisa because the defendants obligations under the plan were inextricably intertwined with the interpretation of plan coverage and benefits and do not create a sufficiently independent duty under aetna health inc v davila 542 us 200 124 sct 2488 159 led2d 312 2004  holding the same under blakely v washington 542 us 296 124 sct 2531 159 led2d 403 2004