Opinion
05-09-2017
E.D. & F. MAN SUGAR, INC., etc., Plaintiff–Appellant, v. ZZY DISTRIBUTORS, INC., etc., et al., Defendants–Respondents, Mariana Deutsch, Defendant.
Franzino & Scher, LLC, New York (Frank J. Franzino, Jr. of counsel), for appellant. Mark S. Friedlander, New York, for respondents.
Franzino & Scher, LLC, New York (Frank J. Franzino, Jr. of counsel), for appellant.
Mark S. Friedlander, New York, for respondents.
ACOSTA, J.P., RENWICK, MAZZARELLI, GISCHE, GESMER, JJ.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about February 16, 2016, which, to the extent appealed from, denied plaintiff's motion for partial summary judgment on its claims for breach of contract, unjust enrichment and alter ego, unanimously affirmed, without costs.
We reject plaintiff's attempt to reclassify its cause of action for breach of contract as one for goods sold and delivered, which is not asserted in the complaint.
The court properly declined to consider plaintiff's unjust enrichment arguments, submitted for the first time in its reply papers (see Matter of Erdey v. City of New York, 129 A.D.3d 546, 11 N.Y.S.3d 592 [1st Dept.2015] ; All State Flooring Distribs., L.P. v. MD Floors,
LLC, 131 A.D.3d 834, 835–836, 16 N.Y.S.3d 539 [1st Dept.2015] ). Even if this Court were to consider plaintiff's unjust enrichment claim, there are issues of fact as to whether and to what extent there is any unpaid balance in connection with the three shipments at issue.
Issues of fact also preclude summary judgment on plaintiff's alter ego claim. While plaintiff has established the fact of payments out of defendant ZZY Distributors, Inc.'s account to entities owned or controlled by its principals, it has not demonstrated that they were improper (see Forum Ins. Co. v. Texarkoma Transp. Co., 229 A.D.2d 341, 342, 645 N.Y.S.2d 786 [1st Dept.1996] ).
We considered plaintiff's remaining contentions and find them unavailing.