| Empire State Fuel Corp. v Warbasse-Cogeneration Tech. Partnership,L.P. |
| 2009 NY Slip Op 00303 [58 AD3d 534] |
| January 22, 2009 |
| Appellate Division, First Department |
| Empire State Fuel Corp.,Appellant, v Warbasse-Cogeneration Technologies Partnership, L.P., Defendant, andAmalgamated Warbasse House, Inc., Respondent. |
—[*1] Baker Greenspan & Bernstein, Bellmore (Robert L. Bernstein, Jr. of counsel), forrespondent.
Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered February 19,2008, in an action to recover the price of fuel delivered to a power plant built and operated bydefendant Warbasse on premises owned by defendant-respondent Amalgamated, a cooperativeapartment complex, insofar as appealed from, dismissing plaintiff's cause of action againstAmalgamated for quantum meruit, unanimously affirmed, with costs.
The existence of a valid contract between plaintiff and Warbasse precludes plaintiff'squantum meruit claim against Amalgamated (see Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593[2007]). In any event, even if there were no contract, there is no evidence that Amalgamated wasever billed or paid for the fuel, and the record, including plaintiff's letter to Warbasse demandingpayment, otherwise establishes that plaintiff at all times understood that Warbasse, and onlyWarbasse, was the party responsible for ordering the fuel and paying for it. While some of thebills mailed to Warbasse's headquarters in Harrison, New York were addressed to "AmalgamatedCo-Generation," there is no evidence of the existence of a company by that name and plaintifffails to explain why it believed that Amalgamated went by that name and had its office inHarrison. Nor is there any evidence that Amalgamated, which timely paid Warbasse for theelectricity and heat generated by the fuel delivered by plaintiff, was unjustly enriched by thedelivery of fuel (see Wiener v Lazard Freres & Co., 241 AD2d 114, 120 [1998][*2][receipt of benefit alone insufficient to show unjust enrichment]).We have considered plaintiff's other arguments and find them unavailing. Concur—Tom,J.P., Andrias, Nardelli, Catterson and Moskowitz, JJ.