Superior Officers Council Health & Welfare Fund v Empire HealthChoice Assur., Inc., 2011 NY Slip Op 05625 (App. Div., 1st 2011)
The unjust enrichment or quasi contract claim was similarly precluded by the existence of a valid agreement governing the subject matter of plaintiffs' claim (id. at 388). Plaintiffs also failed to state a claim under General Business Law § 349 because the conduct alleged in the complaint was not consumer-oriented (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320 [1995]). Finally, the claim based on the implied covenant of good faith and fair dealing was redundant since it is intrinsically tied to the
damages sought under the contract claim (see Bostany v Trump Org. LLC, 73 AD3d 479, 481 [2010]).
Beach v Touradji Capital Mgt. L.P., 2011 NY Slip Op 05621 (App. Div., 1st 2011)
"A quasi contract' only applies in the absence of an express agreement . . . in order to prevent a party's unjust enrichment" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]). Plaintiffs should have been permitted to plead both contract and quasi-contract claims in the alternative (see Winick Realty Group LLC v Austin & Assoc., 51 AD3d 408 [2008]). The court erred in dismissing plaintiff's unjust enrichment claim since it was based on allegations that defendants were unjustly enriched by withholding plaintiffs' 2005 compensation and reinvesting it without their permission, and no contract governing those actions existed. The court also erred in concluding, at this pleading stage, that plaintiffs' compensation did not constitute "wages" under Labor Law § 190, because plaintiffs alleged that the compensation was not "entirely discretionary" and was based on plaintiffs' "own personal productivity," and not solely upon defendants' overall financial success (see Truelove v Northeast Capital & Advisory, 95 NY2d 220 [2000]).
1133 Taconic, LLC v Lartrym Servs., Inc., 2011 NY Slip Op 05470 (App. Div., 2nd 2011)
"To prevail on a claim of unjust enrichment, a plaintiff must establish that the defendant benefitted at the plaintiff's expense and that equity and good conscience require restitution" (Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593; see Cruz v McAneney, 31 AD3d 54, 59). "Enrichment alone will not suffice to invoke the remedial powers of a court of equity. Critical is that under the circumstances and as between the two parties to the transaction the enrichment be unjust" (McGrath v Hilding, 41 NY2d 625, 629; see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678, 680).
Chi Kee Pang v Synlyco, Ltd., 2011 NY Slip Op 08553 (2nd Dept., 2011)
The Supreme Court correctly determined that the instant action was time-barred under the applicable statutes of limitations. The cause of action to recover damages for breach of contract is barred by the six-year statute of limitations (see CPLR 213[2]). The plaintiff's contention that the statute of limitations was tolled by the defendants' acknowledgment of the parties' alleged oral agreement is without merit, since the plaintiff failed to submit a writing to that effect, and General Obligations Law § 17-101 provides, in relevant part, that, with certain exceptions not applicable here, "[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provision of limitations of time for commencing actions under the civil practice law and rules"(emphasis supplied) (cf. Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 815). The cause of action to recover damages for unjust enrichment, which is indistinguishable from the breach of contract cause of action, is, consequently, also barred by the six-year statute of limitations set forth in CPLR 213(2) (see EMD Constr. Corp. v New York City Dept. of Hous. Preserv. & Dev., 70 AD3d 893, 894; 37 Park Dr. S., Inc. v Duffy, 63 AD3d 1040, 1041). The cause of action to recover damages for fraud is time-barred inasmuch as the action was not commenced within six years of the date on which the cause of action accrued or within two years after the time the plaintiff could with reasonable diligence have discovered the fraud (see CPLR 213[8]; Prand Corp. v County of Suffolk, 62 AD3d 681, 683; Pericon v Ruck, 56 AD3d 635, 636). Contrary to the plaintiff's contention, the doctrine of equitable estoppel is unavailable to toll the statute of limitations since, in response to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether any action or representation by the defendants induced him to forego the timely commencement of an action to enforce his rights under the alleged oral agreement (see Javaheri v Old Cedar Dev. Corp., 84 AD3d 881, 886; Jones v Safi, 58 AD3d 603, 604).
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