Opinion
2021-05820 Index 651719/20
10-26-2021
Mobile Audio Specialists, Inc., et al., Plaintiffs-Appellants, v. ACIM NY, L.L.C. et al., Defendants, Nissan North America, Inc., Defendant-Respondent. Appeal No. 14498 Case No. 2021-00745
Morrison Tenenbaum PLLC, New York (Joshua S. Androphy of counsel), for appellants. Seyfarth Shaw LLP, New York (Eddy Salcedo and Caleb J. Schillinger of the bar of the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), for respondent.
Morrison Tenenbaum PLLC, New York (Joshua S. Androphy of counsel), for appellants.
Seyfarth Shaw LLP, New York (Eddy Salcedo and Caleb J. Schillinger of the bar of the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), for respondent.
Before: Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered January 28, 2021, which, insofar as appealed from, granted the motion of defendant Nissan North America, Inc. to dismiss the complaint as against it, unanimously affirmed, with costs.
Plaintiff's unjust enrichment claim was barred by the existence of the express sublease between plaintiff and its tenants (see J.T. Magen & Co., Inc. v Nissan N. Am., Inc., 178 A.D.3d 466, 467 [1st Dept 2019]). Moreover, plaintiff had no relationship or connection to defendant Nissan and thus, the absence of a relationship approaching privity was also fatal to the unjust enrichment claim (see Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173, 182 [1st Dept 2011]).
Plaintiff's allegation that Nissan was a but for cause of the tenants' breach of the sublease was conclusory and merely recited the elements of the claim (s ee Benton v Kennedy-Van Saun Mfg. & Eng'g Corp., 2 A.D.2d 27, 29-30 [1st Dept 1956]). Furthermore, it was evident from the allegations that the tenants had abandoned the sublease well before the alleged interference by Nissan (see New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 153 A.D.3d 1351, 1354 [2d Dept 2017]).