Opinion
No. 570844/09.
2013-04-18
Michael BANDLER, Plaintiff–Appellant, v. LIBERTY CHEVROLET, INC., Defendant–Respondent, and Hot Wheelz, Inc., Nicholas Vitucci, Pro Logic Computers and JP Morgan Chase Bank, Defendants.
Plaintiff, as limited by his briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated August 24, 2006, which granted defendant-respondent's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), and denied, as moot, plaintiff's cross motion to amend the complaint.
Present: SCHOENFELD, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Ben R. Barbato, J.), dated August 24, 2006, affirmed, with $10 costs, for the reasons stated by Ben R. Barbato, J. at Civil Court.
Even taking the allegations of the complaint as true, we agree that plaintiff failed to sufficiently state the essential elements of his claim for unjust enrichment ( see Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011];cf. Murphy v. 317–319 Second Realty LLC, 95 AD3d 443, 445 [2012] ) and that, no actionable underlying tort having been pled, plaintiff's remaining cause for conspiracy must fail as well ( see Dilimetin & Dilimetin v. Stein, 297 A.D.2d 601, 602 [2002] ).
In reaching the merits, we assume, without deciding, that plaintiff's appeal from the 2006 dismissal order was timely prosecuted and was not rendered academic by plaintiff's commencement of a subsequent action against defendant based upon the same underlying events ( see and compare Velez v. Feinstein, 87 A.D.2d 309, 312–313 [1982],lv dismissed in part and denied in part 57 N.Y.2d 787 [1982] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.