Opinion
February 16, 2001.
Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered October 12, 1999, which awarded summary judgment to defendant Milberg Factors, Inc. and dismissed the second cause of action, unanimously reversed, on the law, with costs, and the second cause of action reinstated.
William D. Wallach, for plaintiff-appellant.
Before: Williams, J.P., Andrias, Lerner, Saxe, Buckley, JJ.
The motion court erred in granting Milberg pre-discovery dismissal of the unjust enrichment cause of action. Plaintiff which bought goods from defendant Atlantic Wholesale, paid Atlantic's factor, Milberg, directly and did not receive the goods. In opposition to the motion, plaintiff presented significant evidence that the factor was aware, at the time of the transaction, of Atlantic's alleged practice of creating fraudulent accounts receivable (cf., Iselin-Jefferson Fin. Co. v. Makel Textiles, 21 A.D.2d 758 [defendant vendee's counterclaims against plaintiff factor dismissed where no inference could be drawn re factor`s awareness of vendor's deficient performance]; see also, Merrill Lynch, Pierce, Fenner Smith, Inc. v. Chipetine, 221 A.D.2d 284, 286-87).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.