Opinion
3804, 3805.
Decided June 8, 2004.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 13, 2003, which, upon reargument, insofar as appealed from as limited by the briefs, adhered to a prior order, same court and Justice, entered November 25, 2002, granting defendants' motion pursuant to CPLR 3211(a)(1), (7) to dismiss plaintiff's cause of action for unjust enrichment, unanimously affirmed, without costs. Appeal from the prior order, unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.
Akabas Cohen, New York (Noah Shapiro of counsel), for appellant.
Kalnick, Klee Green, New York (Allen Green of counsel), for respondents.
Before: Tom, J.P., Mazzarelli, Andrias, Ellerin, Lerner, JJ.
Plaintiff's unjust enrichment claim is precluded by its written contract with a nonparty governing its right to compensation for the very services that allegedly unjustly enriched defendants ( see Feigen v. Advance Capital Mgt. Corp., 150 A.D.2d 281, 283, lv dismissed, lv denied 74 N.Y.2d 874). As it is undisputed that the written contract with the nonparty is valid and enforceable, plaintiff's reliance on Seiden Assoc. v. ANC Holdings ( 754 F. Supp. 37) is misplaced ( see Affiliated Capital Servs. Corp. v. West Atl. City Assoc., 760 F. Supp. 1067, 1077). We note the pending arbitration proceeding that plaintiff has commenced against the nonparty.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.