Alex DERBAREMDIKER, Plaintiff-Appellant, v. APPLEBEE'S INTERNATIONAL, INC., Defendant-Appellee, 519 F. App'x 77

SUMMARY ORDER Appeal from the United States District Court for the Eastern District of New York (Matsumoto, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Alex Derbaremdiker appeals from the district court’s October 2, 2012 judgment, entered pursuant to its September 26, 2012 memorandum and order dismissing the class action complaint for failure to state a claim. See Fed. R.Civ.P. 12(b)(6).

In his complaint, Der-baremdiker alleges that defendant-appel-lee Applebee’s International, Inc. (“Apple-bee’s”) engaged in deceptive conduct in connection with an online customer satisfaction survey and sweepstakes. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal. We review a dismissal under Rule 12(b)(6) de novo, accepting the complaint’s allegations as true and drawing all reasonable inferences in favor of the plaintiff. See Rothstein v. UBS AG, 708 F.3d 82, 90 (2d Cir.2013).

After an independent review of the record, we affirm for substantially the reasons set forth by the district court in its thorough twenty-three page opinion. On appeal, Derbaremdiker argues that the district court improperly went beyond the four corners of the complaint to consider the sweepstakes’ official rules, which were located on a website referenced in the receipt. This argument is waived because, in the proceedings below, Derbar-emdiker expressly agreed that the district court could properly consider these rules.

Even if the argument were not waived, the complaint refers to these rules and the district court properly deemed them to be incorporated in the complaint. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 112 (2d Cir.2010). Notwithstanding Derbaremdiker’s arguments to the contrary, these rules do not contradict the statements on the receipt, but rather clarify those statements to the extent they were ambiguous regarding which prizes were available daily and which companies participated in the sweepstakes. Accordingly, a reasonable person would not find the receipt “materially misleading,” Koch v.

Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 944 N.Y.S.2d 452, 967 N.E.2d 675 (2012), and “equity and good conscience” do not require that Applebee’s disgorge any “benefit” derived from Derbaremdiker’s response to the survey, Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 (2012). Cf. Samuelson v. Union Carbide Corp., No. 85 Civ. 5373,1986 WL 1442, at *2-3 (S.D.N.Y. Jan.29, 1986) (dismissing civil RICO and N.Y. Gen. Bus.

L. § 349 claims alleging that contest terms on packaging were materially misleading in part because “[t]he front of the ... packages referred to a description of the game and its rules with the phrase ‘(SEE BACK)’ ” and those rules on the back removed any ambiguity in the contest terms), aff'd, 792 F.2d 136 (2d Cir.1986) (unpublished table decision). We have considered Derbaremdiker’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.