Opinion
1385
August 14, 2003.
Order, Supreme Court, New York County (Charles Ramos, J.), entered April 26, 2002, which, to the extent appealed from, granted defendant's motion to dismiss the cause of action for unjust enrichment, unanimously reversed, on the law, without costs, the motion denied, and the cause of action reinstated.
Michael P. Graff, for plaintiff-appellant.
Yuehru Chu, for defendant-respondent.
Before: Andrias, Saxe, Sullivan, Ellerin, JJ.
While the existence of a valid and enforceable contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter (Clark-Fitzpatrick, Inc. v. Long Island Railroad Co., 70 N.Y.2d 382, 388), where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue, plaintiff may proceed upon a theory of quantum meruit and will not be required to elect his or her remedies (Joseph Sternberg, Inc. v. Walber 336thStreet Associates, 187 A.D.2d 225, 228). Here, in view of the bona fide dispute over whether, as plaintiff contends and defendant denies, the High Tension Tariff and Power for Jobs programs are within the scope of the parties' contracts, dismissal of plaintiff's unjust enrichment claim with respect to those programs was premature (see ME Corp. S.A. v. Cohen Brothers LLC, 292 A.D.2d 183, 185-186).
We have considered and rejected defendant's remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.