Opinion
2002-06067
Argued April 22, 2003.
May 19, 2003.
In an action, inter alia, to recover damages for unjust enrichment, the defendants City of New York and New York City Department of Parks and Recreation appeal from an order of the Supreme Court, Queens County (Flug, J.), dated April 12, 2002, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for appellants.
Markotsis Lieberman, Hicksville, N.Y. (Douglas M. Lieberman of counsel), for respondent.
Before: NANCY E. SMITH, J.P., HOWARD MILLER, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.
The appellants demonstrated their prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In opposition to the motion, the plaintiff failed to raise a triable issue of fact regarding the cause of action asserted against the appellants to recover damages for unjust enrichment. The mere fact that the appellants consented to the improvements and received some benefit from the plaintiff's activities is insufficient to recover on such a theory; the plaintiff must also show that it was working for the appellants when it performed its work resulting in unjust enrichment (see Hampton Living v. Carltun on the Park, 286 A.D.2d 664; Amana Elevation Corp. v. Ydrohoos-Aquarius, Inc., 244 A.D.2d 371; Outrigger Constr. Co. v. Bank Leumi Trust Co. of N.Y., 240 A.D.2d 382). The plaintiff contracted only with the defendant Vinco Marine Management, Inc. Additionally, there was no evidence that the appellants assumed an obligation to pay the plaintiff (see Amana Elevation Corp. v. Ydrohoos-Aquarius, Inc., supra; Outrigger Constr. Co. v. Bank Leumi Trust Co. of N.Y., supra).
Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment.
The plaintiff's remaining contention is without merit.
SMITH, J.P., H. MILLER, COZIER and RIVERA, JJ., concur.