| MT Prop., Inc. v Ira Weinstein & Larry Weinstein, LLC |
| 2008 NY Slip Op 03180 [50 AD3d 751] |
| April 8, 2008 |
| Appellate Division, Second Department |
| MT Property, Inc., et al., Respondents, v Ira Weinstein andLarry Weinstein, LLC, Appellant, et al., Defendants. |
—[*1] Yoram Nachimovsky, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for unjust enrichment, the defendant Ira Weinsteinand Larry Weinstein, LLC, appeals, as limited by its brief, from so much of an order of theSupreme Court, Kings County (Bayne, J.), dated October 13, 2006, as denied that branch of itsmotion which was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Ira Weinstein and Larry Weinstein, LLC, which was forsummary judgment dismissing the complaint insofar as asserted against it is granted.
The appellant met its burden of establishing entitlement to judgment as a matter of law bycoming forward with evidentiary proof, in admissible form, demonstrating the absence of anydisputed material facts (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, the plaintiffsfailed to raise a triable issue of fact.
To prevail on a claim of unjust enrichment, a plaintiff must establish that it conferred abenefit upon the defendant, and that the defendant will obtain that benefit without adequatelycompensating the plaintiff therefor (see Smith v Chase Manhattan Bank, USA, 293AD2d 598, 600 [2002]; [*2]Nakamura v Fujii, 253 AD2d387, 390 [1998]). Here, the appellant submitted the written option agreement between the partieswhich expressly provided that the plaintiffs, as tenants, would undertake rezoning of the subjectproperty at their "sole cost and expense." Additionally, the option agreement provided that theplaintiffs would "bear all of the expenses of . . . zoning and/or variance changes,and permits." Thus, the plaintiffs could have no expectation of compensation from the appellantfor the costs and expenses they incurred to rezone and develop the property.
Additionally, a claim alleging unjust enrichment may not be maintained where there is avalid and express agreement between the parties which explicitly covers the same specificsubject matter for which the implied agreement is sought (see Kohn v Hartstein & Hartstein,294 AD2d 543 [2002]). Here, the option agreement specifically addressed the issue of whichparty is to bear the cost of rezoning, and the plaintiffs' unjust enrichment claim is barred therebyas a matter of law.
Accordingly, the Supreme Court should have granted that branch of the appellant's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it.
The plaintiffs' remaining contentions are without merit. Ritter, J.P., Santucci, Covello andCarni, JJ., concur.