Opinion
570631/11
02-16-2012
Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow, LLP on Behalf of BCP Holdings (USA), Inc., Successor by Merger to Millennium BCPBank, National Association, Plaintiff-Respondent, James P. Harkins d/b/a James v. P. Harkins & Associates, Defendant-Appellant.
PRESENT: , J.P., Shulman, Hunter, Jr., JJ
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated June 23, 2011, which denied his motion to dismiss the complaint.
Per Curiam.
Order (Margaret A. Chan, J.), dated June 23, 2011, affirmed, with $10 costs.
The summary statement of the causes of action contained in the endorsed complaint adequately apprised defendant of the "nature and substance" of the claims asserted by the plaintiff law firm (CCA 902[a][1]; see CCA 903). Allegations that defendant, a private investigative firm, breached the terms of the governing written retainer agreement in "fail[ing] to conduct any substantive interviews or perform any investigative services beyond mere attempts to conduct interviews and failed to provide any written reports or substantiation for the services it allegedly performed," and was thereby "unjustly enriched at ... [plaintiff's] expense," were sufficient to withstand defendant's motion to dismiss for failure to state a cause of action. Further, at this early stage of the proceedings and in the absence of any acknowledgement by defendant of the validity of the contractual agreement sued upon, it cannot be said that plaintiff's cause of action for unjust enrichment was duplicative of its breach of contract claim (cf. Zito v Fischbein, Badillo, Wagner & Harding, 35 AD3d 306 [2006]). Any misdescription in the caption of plaintiff's legal status constitutes a mere irregularity, correctable by amendment (see Cutting Edge, Inc. v Santora, 4 AD3d 867 [2004]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.