| DePasquale v Estate of DePasquale |
| 2007 NY Slip Op 07391 [44 AD3d 606] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Daniel C. DePasquale, Appellant, v Estate of Joseph C.DePasquale et al., Respondents. |
—[*1] David Arens, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1)from so much of an order of the Supreme Court, Queens County (Nelson, J.), entered June 1,2006, as granted those branches of the defendants' motion pursuant to CPLR 3211 (a) (1) and (7)which were to dismiss the second, fourth, and fifth causes of action in the original complaint, and(2), as limited by his notice of appeal and brief, from so much of an order of the same courtentered December 19, 2006, as, upon the defendants' cross motion, among other things, in effect,for leave to reargue, struck the second, fourth, and fifth causes of action in the amendedcomplaint.
Ordered that the appeal from the order entered June 1, 2006 is dismissed as academic; and itis further,
Ordered that the order entered December 19, 2006 is modified, on the law, by deleting theprovision thereof striking the fourth and fifth causes of action from the amended complaint; as somodified, the order entered December 19, 2006 is affirmed insofar as appealed from, and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced the instant action, inter alia, to recover damages for breach ofcontract seeking, among other things, a share of the profits from certain business operations. The[*2]Supreme Court granted those branches of the defendants'motion which were to dismiss the second cause of action alleging breach of an oral agreement,the fourth cause of action alleging unjust enrichment, and the fifth cause of action seeking theimposition of a constructive trust, but denied those branches of the defendants' motion whichwere to dismiss the two remaining causes of action. The plaintiff moved for leave to reargue, andthe defendants, in effect, cross-moved for leave to reargue. Before the motion and the crossmotion were decided, the plaintiff served an amended complaint. Thereafter, the Supreme Court,upon that branch of the defendant's cross motion which was, in effect, for leave to reargue, struckthe second, fourth, and fifth causes of action from the amended complaint, which were identicalto those previously dismissed from the original complaint. We modify.
Because the original complaint was superseded by the amended complaint, the plaintiff'sappeal from the order entered June 1, 2006, referable to the original complaint, has been renderedacademic (see Weber v Goss, 18AD3d 540 [2005]).
The Supreme Court properly dismissed the plaintiff's second cause of action alleging breachof an oral agreement on the ground that the defendants produced documentary evidenceconclusively establishing a defense as a matter of law (see CPLR 3211 [a] [1]; 511W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Matter of Casamassima vCasamassima, 30 AD3d 596 [2006]). The alleged oral agreement directly contradicted atypewritten contract signed by the plaintiff, and thus, the plaintiff may not seek to vary theunambiguous terms of the written contract with evidence of a contemporaneous oral agreement(see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).
However, the Supreme Court should not have dismissed the fourth cause of action pursuantto CPLR 3211 (a) (1). The plaintiff stated a cause of action to recover damages for unjustenrichment, sounding in quasi-contract, for amounts loaned to the defendant DebroManufacturing Corp. (seeCarriafielio-Diehl & Assoc., Inc. v D&M Elec. Contr., Inc., 12 AD3d 478, 479 [2004]),which the defendants failed to refute with documentary evidence conclusively establishing thesatisfaction of all amounts allegedly due (see 511 W. 232nd Owners Corp. v Jennifer RealtyCo., 98 NY2d 144 [2002]; Matter ofCasamassima v Casamassima, 30 AD3d 596 [2006]). Moreover, to the extent that thefirst cause of action alleging breach of a handwritten agreement covers the same subject matter asthe plaintiff's equitable claim for unjust enrichment, the plaintiff is not required to elect hisremedies where, as here, there is a bona fide dispute as to the existence of an express contract (see Hochman v LaRea, 14 AD3d653, 654-655 [2005]).
Further, the Supreme Court should not have dismissed the fifth cause of action pursuant toCPLR 3211 (a) (1) and (7). Accepting the facts alleged in the complaint as true, and accordingthe plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84NY2d 83, 87-88 [1994]), the plaintiff alleged all elements of an equitable cause of action for theimposition of a constructive trust upon sums of money loaned to the defendant DebroManufacturing Corp. (see Gottlieb v Gottlieb, 166 AD2d 413, 414 [1990]). Schmidt, J.P.,Rivera, Krausman and Florio, JJ., concur. [See 12 Misc 3d 1195(A), 2006 NY Slip Op51581(U) (2006).]