| Unclaimed Prop. Recovery Serv., Inc. v UBS PaineWebberInc. |
| 2009 NY Slip Op 00257 [58 AD3d 526] |
| January 20, 2009 |
| Appellate Division, First Department |
| Unclaimed Property Recovery Service, Inc.,Appellant, v UBS PaineWebber Inc., Respondent. |
—[*1] Schindler Cohen & Hochman LLP, New York (Daniel E. Shaw of counsel), forrespondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered November 20, 2007,which granted defendant's motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint,unanimously affirmed, without costs.
The breach of contract cause of action was properly dismissed since the parties' agreement,which provided that defendant would pay plaintiff a fee of ten percent of all unclaimed propertyrecovered, neither specified the "nature of the property" nor "disclose[d] the name and address ofthe holder" (Abandoned Property Law § 1416 [1] [b], [c]). The court properly refused toincorporate by reference a 36-page list of properties held by the New York State Office ofUnclaimed Funds, as the list was not "referred to and described in the instrument as issued so asto identify the referenced document 'beyond all reasonable doubt' " (Shark Information Servs.Corp. v Crum & Forster Commercial Ins., 222 AD2d 251, 252 [1995], quoting Matter ofBoard of Commrs. of Washington Park of City of Albany, 52 NY 131, 134 [1873]), and theagreement contained a merger clause. The court also properly did not admit the list as parolevidence since the agreement was "complete and clear and unambiguous upon its face"(W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990] [internal quotation marks andcitation omitted]).
Dismissal of the unjust enrichment claim was appropriate as it was duplicative of the breachof contract cause of action (seeUnclaimed Prop. Recovery Serv., Inc. v Chase Manhattan Bank, 25 AD3d 688, 689[2006], lv denied 7 NY3d 713 [2006]). In the absence of a claim [*2]establishing underlying liability, the account stated claim was notviable (see M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515, 516[1998]). Concur—Mazzarelli, J.P., Friedman, Buckley, Acosta and Freedman, JJ.