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888 Construction, Inc. v. City of Troy

Supreme Court, Special Term, Rensselaer County
Jul 23, 1975
82 Misc. 2d 1004 (N.Y. Sup. Ct. 1975)

Opinion

July 23, 1975

Gearon J. Kimball for plaintiff.

Thomas V. Kenney, Jr., Acting Corporation Counsel, for defendant.


This is a motion by the defendant for an order dismissing the complaint pursuant to CPLR 3211 (subd [a]) upon the grounds that the complaint does not state a cause of action against the defendant.

The action on which the instant motion is predicated is for an alleged unjust enrichment in the sum of $3,500.10 which is the amount of the fee charged by the defendant City of Troy for a building permit issued to plaintiff for permission to construct garden apartments in the City of Troy.

The complaint alleges that a certain corporation, Troy Heights Development Corp., the owner of certain lands in the City of Troy, New York, entered into a contract with the plaintiff whereby plaintiff agreed to construct a 270-unit garden apartment building on the premises. Further, the complaint alleges that on October 4, 1973 defendant issued a building permit for which plaintiff paid a fee of $3,500.10 and that subsequently Troy Heights Development Corp. breached the contract and without cause dismissed the plaintiff from the project. That on November 5, 1974, defendant issued a new building permit to the Troy Heights Development Corp. with respect to the same project, and that plaintiff duly made a written demand for the return of the fee of $3,500.10 and defendant refused to return same.

The movant contends that the fee was paid pursuant to the provisions of section 10-23 of the Code of Ordinances of the City of Troy; that there is no provision in the code for a refund and in the absence of statutory authority the money may not now be repaid to the plaintiff; and that no facts are alleged in the complaint to support a theory of unjust enrichment.

This court must agree with these contentions of the defendant.

The motion to dismiss the complaint is granted.


Summaries of

888 Construction, Inc. v. City of Troy

Supreme Court, Special Term, Rensselaer County
Jul 23, 1975
82 Misc. 2d 1004 (N.Y. Sup. Ct. 1975)
Case details for

888 Construction, Inc. v. City of Troy

Case Details

Full title:888 CONSTRUCTION, INC., Plaintiff, v. CITY OF TROY, Defendant

Court:Supreme Court, Special Term, Rensselaer County

Date published: Jul 23, 1975

Citations

82 Misc. 2d 1004 (N.Y. Sup. Ct. 1975)
371 N.Y.S.2d 121