| Kirby McInerney & Squire, LLP v Hall Charne Burce & Olson, S.C. |
| 2005 NYSlipOp 01097 |
| February 10, 2005 |
| Appellate Division, First Department |
| Kirby McInerney & Squire, LLP, Respondent, v Hall Charne Burce & Olson, S.C. et al., Appellants. |
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Order, Supreme Court, New York County (Jane S. Solomon, J.), entered January 15, 2004, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint in its entirety, unanimously affirmed, with costs.
The IAS court dismissed the cause of action for conversion, but denied defendants' motion with regard to breach of contract and unjust enrichment. There is a long-established principle that money paid under mistake of material fact may be recovered, unless the party resisting repayment can demonstrate that its position has so changed by reason of the payment as to make repayment inequitable (Mayer v Mayor, 63 NY 455 [1875]). The voluntary payment doctrine, which bars recovery of payments voluntarily made with full knowledge of the facts and in the absence of fraud or mistake of material fact or law (Dillon v U-A Columbia Cablevision of Westchester, 100 NY2d 525 [2003]), does not apply here, where the overpayments were clearly made to defendants based on a mistake of fact, namely, the amount of fees actually owed by plaintiff to defendants. Concur—Buckley, P.J., Tom, Marlow, Gonzalez and Catterson, JJ.