Opinion
2014-01-29
John OTTO, appellant, v. Puneet DUREJA, et al., respondents.
Goldstein & Greenlaw, LLP, Forest Hills, N.Y. (Andrew Schwarsin of counsel), for appellant. Placid & Metu, P.C., Jamaica, N.Y. (Placid Aguwa of counsel), for respondents.
Goldstein & Greenlaw, LLP, Forest Hills, N.Y. (Andrew Schwarsin of counsel), for appellant. Placid & Metu, P.C., Jamaica, N.Y. (Placid Aguwa of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Grays, J.), entered November 17, 2011, as, upon an order of the same court entered March 9, 2011, among other things, denying his motion, in effect, to conform the pleadings to the proof, after a nonjury trial, is in favor of the defendants and against him dismissing the complaint.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
Upon review of a determination rendered after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809).
As the plaintiff correctly concedes, the Supreme Court properly found that there was no meeting of the minds with respect to the material terms of his alleged oral agreement with the defendants. Thus, the alleged contract was unenforceable ( see Computer Assoc. Intl., Inc. v. U.S. Balloon Mfg. Co., Inc., 10 A.D.3d 699, 700, 782 N.Y.S.2d 117). Accordingly, the Supreme Court properly dismissed the cause of action to recover damages for breach of contract. Further, since the plaintiff failed to prove the existence of an enforceable contract, he was not entitled to the return of money he gave to the defendants as part of the alleged agreement.
The Supreme Court properly denied the plaintiff's motion, in effect, to conform the pleadings to the proof by adding a cause of action to recover damages for unjust enrichment. Granting the amendment would have prejudiced the defendants ( see Countrywide Funding Corp. v. Reynolds, 41 A.D.3d 524, 525, 839 N.Y.S.2d 108; Voyticky v. Duffy, 19 A.D.3d 685, 685, 798 N.Y.S.2d 494).
The plaintiff's remaining contention is without merit. DILLON, J.P., DICKERSON, AUSTIN and SGROI, JJ., concur.