Opinion
15444 Index No. 653515/20 Case No. 2021–02778
03-03-2022
FM COST CONTAINMENT, LLC., Plaintiff–Appellant, v. +42 W. 35TH PROPERTY LLC et al., Defendants–Respondents.
Bantle & Levy LLP, New York (Robert L. Levy of counsel), and Bell & Bell LLP, Philadelphia, PA (James A. Bell, IV of the bar of the Commonwealth of Pennsylvania, admitted pro hac vice, of counsel), for appellant. Walden Macht & Haran LLP, New York (Daniel A. Cohen of counsel), for respondents.
Bantle & Levy LLP, New York (Robert L. Levy of counsel), and Bell & Bell LLP, Philadelphia, PA (James A. Bell, IV of the bar of the Commonwealth of Pennsylvania, admitted pro hac vice, of counsel), for appellant.
Walden Macht & Haran LLP, New York (Daniel A. Cohen of counsel), for respondents.
Renwick, J.P., Gesmer, Moulton, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 11, 2021, which granted the motion of defendants +42 W. 35th Property LLC, Meadow Capital Management, LP, and Hotel Asset Value Enhancement, Inc. (Hotel AVE) to dismiss the complaint in its entirety as against Meadow and Hotel AVE, and to dismiss the second (breach of verbal or implied agreement), third (promissory estoppel), and fourth (unjust enrichment) causes of action against +42 W. 35th, unanimously affirmed, without costs.
The motion court properly dismissed the quasi contractual claims against +42 W. 35th, since both plaintiff and +42 W. 35th acknowledged that their agreement is an enforceable contract. Thus, recovery on a theory of quasi contract is foreclosed, as a claim for unjust enrichment does not lie where it duplicates a conventional contract claim (see Clark–Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ; Scarola Ellis LLP v. Padeh, 116 A.D.3d 609, 611, 984 N.Y.S.2d 56 [1st Dept. 2014] ).
The court also properly dismissed the complaint against Meadow and Hotel AVE, neither of which signed the agreement, as plaintiff did not adequately plead facts to support liability under a veil piercing or alter ego theory (see Array BioPharma, Inc. v. AstraZeneca AB, 184 A.D.3d 463, 464, 126 N.Y.S.3d 91 [1st Dept. 2020] ; Remora Capital S.A. v. Dukan, 175 A.D.3d 1219, 1221, 110 N.Y.S.3d 14 [1st Dept. 2019] ). Likewise, plaintiff cannot maintain a quasi contract claim against a third-party nonsignatory to a contact that covers the subject matter of the claim (see Randall's Is. Aquatic Leisure, LLC v. City of New York, 92 A.D.3d 463, 464, 938 N.Y.S.2d 62 [1st Dept. 2012], lv denied 19 N.Y.3d 804, 2012 WL 1948299 [2012] ).