Opinion
2019–10153 Index No. 7806/18
03-10-2021
KST2 PROPERTIES, LLC, appellant, v. PRETEE CONSTRUCTION CO., INC., et al., respondents.
Razis & Ross, P.C., Astoria, N.Y. (George J. Razis of counsel), for appellant. Pardalis & Nohavicka, LLP, Astoria, N.Y. (Joseph D. Nohavicka of counsel), for respondents.
Razis & Ross, P.C., Astoria, N.Y. (George J. Razis of counsel), for appellant.
Pardalis & Nohavicka, LLP, Astoria, N.Y. (Joseph D. Nohavicka of counsel), for respondents.
WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered May 1, 2019. The order, insofar as appealed from, denied those branches of the plaintiff's cross motion which were pursuant to CPLR 3211(a) to dismiss the defendants' counterclaims.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the plaintiff's cross motion which were pursuant to CPLR 3211(a) to dismiss the defendants' counterclaims alleging unjust enrichment and conversion, and substituting therefor provisions granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
The Supreme Court erred in denying those branches of the plaintiff's cross motion which were pursuant to CPLR 3211(a)(7) to dismiss the defendants' second and third counterclaims, which alleged unjust enrichment and conversion, respectively.
On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), the court "must accept [the] facts as alleged ... and submissions in opposition [as true], accord [the pleading party] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs. Inc., 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487 [internal quotation marks omitted]; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).
Here, as part of their second counterclaim alleging unjust enrichment, the defendants alleged in relevant part that the "[p]laintiff failed to submit the payments as required by the contract." The defendants thereby acknowledged that there is a contract which governs the subject matter, and "an unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim" ( Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 ; see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388–389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ).
Further, with respect to their third counterclaim, alleging conversion, since the defendants failed to allege that they had ownership, possession, or control of the funds allegedly converted, the defendants have asserted nothing more than a "contractual right to payment" which cannot serve as the basis for a conversion counterclaim ( Orchid Constr. Corp. v. Gottbetter, 89 A.D.3d 708, 710, 932 N.Y.S.2d 100 ; Daub v. Future Tech Enter., Inc., 65 A.D.3d 1004, 1006, 885 N.Y.S.2d 115 ).
The parties' remaining contentions are without merit.
MASTRO, A.P.J., RIVERA, MILLER and DUFFY, JJ., concur.