Opinion
2021–00893 Index No. 600752/20
09-13-2023
BEDFORD–CARP CONSTRUCTION, INC., appellant, v. BROOKLYN UNION GAS COMPANY, etc., respondent.
Law Office of Steven Cohn, P.C., Carle Place, NY (Matthew T. Feinman of counsel), for appellant. Day Pitney, LLP, New York, NY (Paul R. Marino and Naju R. Lathia of counsel), for respondent.
Law Office of Steven Cohn, P.C., Carle Place, NY (Matthew T. Feinman of counsel), for appellant.
Day Pitney, LLP, New York, NY (Paul R. Marino and Naju R. Lathia of counsel), for respondent.
MARK C. DILLON, J.P., LARA J. GENOVESI, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for breach of contract, for declaratory relief, and to recover damages for unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Nassau County (Vito M. Destefano, J.), entered January 27, 2021. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action, to recover damages for unjust enrichment, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
On or about May 10, 2016, the plaintiff contracted with the New York City Department of Design and Construction (hereinafter NYCDDC) to install a box storm sewer in and around Neptune Avenue, in Brooklyn, and an adjacent parcel known as Coney Island Creek. While it was performing work under the contract, the plaintiff discovered that approximately 45,000 tons of soil and subsoil at the construction site was contaminated. After an environmental consultant approved by NYCDDC found that the defendant's gas facilities had caused the contamination, the NYCDDC directed the defendant to remove and remediate the contaminated soil. The defendant refused to do so, and the plaintiff remediated the contamination in order to proceed with its work. Subsequently, the plaintiff commenced this action asserting causes of action alleging breach of contract, for a judgment declaring that the defendant must compensate the plaintiff for the removal, and alleging unjust enrichment. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted the motion, and the plaintiff appeals.
"Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties" ( Hamlet at Willow Cr. Dev. Co., LLC v. Northeast Land Dev. Corp., 64 A.D.3d 85, 104, 878 N.Y.S.2d 97 ; see KTG Hospitality, LLC v. Cobra Kitchen Ventilation, Inc., 201 A.D.3d 710, 711, 156 N.Y.S.3d 878 ; CDJ Bldrs. Corp. v. Hudson Group Constr. Corp., 67 A.D.3d 720, 722, 889 N.Y.S.2d 64 ). Here, the Supreme Court properly granted those branches of the defendant's motion which were to dismiss the first cause of action, alleging breach of contract, and the second cause of action, for a declaratory judgment, in effect, on the ground that the there was no contractual relationship or privity between the plaintiff and the defendant (see CPLR 3211[a][3], [7] ).
However, the Supreme Court erred in granting that branch of the defendant's motion which was to dismiss the third cause of action, alleging unjust enrichment. "Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties" ( Columbia Mem. Hosp. v. Hinds, 38 N.Y.3d 253, 275, 172 N.Y.S.3d 649, 192 N.E.3d 1128 [internal quotation marks omitted]; see Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 ). "To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" ( Columbia Mem. Hosp. v. Hinds, 38 N.Y.3d at 275, 172 N.Y.S.3d 649, 192 N.E.3d 1128 [internal quotation marks omitted]; see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 ). " ‘[T]he essential inquiry in any action for unjust enrichment ... is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered’ " ( Columbia Mem. Hosp. v. Hinds, 38 N.Y.3d at 275, 172 N.Y.S.3d 649, 192 N.E.3d 1128, quoting Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [internal quotation marks omitted]). "Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated" ( Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 ; see Sperry v. Crompton Corp., 8 N.Y.3d 204, 215, 831 N.Y.S.2d 760, 863 N.E.2d 1012 ).
Here, affording the complaint a liberal construction, we find that it sufficiently alleged that the defendant was unjustly enriched, at the plaintiff's expense, by the plaintiff's remediation of the contaminated soil, and that it would be against equity and good conscience to permit the defendant to retain what was sought to be recovered (see Trenholm–Owens v. City of Yonkers, 197 A.D.3d 521, 524, 153 N.Y.S.3d 26 ; see also Paterno & Sons, Inc. v. Jamaica Water Supply Co., 52 A.D.2d 595, 595, 382 N.Y.S.2d 114 ). Moreover, we find that the Supreme Court erred in determining, in effect, that the connection between the parties was too attenuated to support a claim for unjust enrichment (cf. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 ). Accordingly, the court should have denied that branch of the defendant's motion which was to dismiss the third cause of action, alleging unjust enrichment.
DILLON, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.