Opinion
05-04-2017
GALOPY CORPORATION INTERNATIONAL, N.V., Plaintiff–Respondent–Appellant, v. DEUTSCHE BANK, A.G., Defendant–Appellant–Respondent.
Allen & Overy LLP, New York (Pamela Rogers Chepiga of counsel), for appellant-respondent. Schlam Stone & Dolan LLP, New York (Erik S. Groothuis of counsel), and Selvaratnam Law Office, New York (Troy Selvaratnam of counsel), for respondent-appellant.
Allen & Overy LLP, New York (Pamela Rogers Chepiga of counsel), for appellant-respondent.
Schlam Stone & Dolan LLP, New York (Erik S. Groothuis of counsel), and Selvaratnam Law Office, New York (Troy Selvaratnam of counsel), for respondent-appellant.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 18, 2016, which granted defendant's motion to dismiss the causes of action for promissory estoppel, unjust enrichment, and money had and received, and denied the motion to dismiss as to the cause of action for breach of contract, unanimously modified, on the law, to grant the motion as to the breach of contract cause of action, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.The breach of contract claim is barred by the statute of frauds. The alleged oral contract had a settlement date of July 10, 2011, and therefore could not be performed within a year (see General Obligations Law § 5–701 [a][1] ). The possibility of its being terminated earlier does not remove the contract from the scope of the statute of frauds (D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 456–457, 483 N.Y.S.2d 164, 472 N.E.2d 992 [1984] ). Unlike the situation in Financial Structures Ltd. v. UBS AG, 77 A.D.3d 417, 909 N.Y.S.2d 45 (1st Dept.2010), which involved an oral agreement with " methods of acceleration" that "would ... advance[ ] the period of fulfillment" (id. at 418, 909 N.Y.S.2d 45 [internal quotation marks omitted] ), the termination provision in this case unwound and canceled the transaction.
The promissory estoppel and unjust enrichment claims are duplicative of the breach of contract claim (see Brown v. Brown, 12 A.D.3d 176, 785 N.Y.S.2d 417 [1st Dept.2004] ). A claim for money had and received lies only in the absence of an agreement ( Parsa v. State of New York, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27, 474 N.E.2d 235 [1984] ).
SWEENY, J.P., GISCHE, KAHN, GESMER, JJ., concur.