Opinion
2002-05380
Argued May 15, 2003.
June 9, 2003.
In an action, inter alia, to recover damages for unfair competition, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated May 3, 2002, which granted the motion of the defendants Olympic Plumbing Heating Corp. and Albert Rocco, and the separate motion of the defendants A. J. Pegno Construction Corp. and Timothy S. Rexon, for summary judgment dismissing the amended complaint insofar as asserted against them.
Agovino Asselta, LLP, Mineola, N.Y. (Steven R. Miller, Joseph P. Asselta, and Eric Su of counsel), for appellant.
Sonnenschein Nath Rosenthal, New York, N.Y. (Allen G. Reiter and Stephen L. Brodsky of counsel), for respondents Olympic Plumbing Heating Corp. and Albert Rocco.
Dewey, Pegno Kramarsky, LLP, New York, N.Y. (David S. Pegno of counsel), for respondents A. J. Pegno Construction Corp. and Timothy S. Rexon.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
The respondents demonstrated their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact relating to its cause of action alleging unfair competition (see Allied Maintenance Corp. v. Allied Mechanical Trades, 42 N.Y.2d 538; Camelot Assoc. Corp. v. Camelot Design Dev., 298 A.D.2d 799). In addition, no issue of fact was raised as to whether the respondents derived a benefit that belonged to the plaintiff, which is necessary to sustain a cause of action based upon unjust enrichment (see Smith v. Chase Manhattan Bank, USA, 293 A.D.2d 598; Fandy Corp. v. Chang, 272 A.D.2d 369; Bugarsky v. Marcantonio, 254 A.D.2d 384). Moreover, the plaintiff failed to establish the existence of a triable issue of fact with respect to whether the respondents made misrepresentations which deprived the plaintiff of payment for a service which it performed, which was necessary to sustain the plaintiff's cause of action alleging fraud (see Cohen v. Houseconnect Realty Corp., 289 A.D.2d 277; Buxton Mfg. Co. v. Valiant Moving Stor., 239 A.D.2d 452; Garelick v. Carmel, 141 A.D.2d 501). Accordingly, the Supreme Court properly granted the respondents' motions to dismiss the amended complaint.
The plaintiff's remaining contention is without merit.
SANTUCCI, J.P., GOLDSTEIN, H. MILLER and SCHMIDT, JJ., concur.