| Merin v Precinct Devs. LLC |
| 2010 NY Slip Op 05691 [74 AD3d 688] |
| June 29, 2010 |
| Appellate Division, First Department |
| David Merin et al., Appellants, v Precinct Developers LLCet al., Defendants, and Bernd H. Allen et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Thomas W. Hyland ofcounsel), for respondents.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered August 19, 2009,which, to the extent appealed from, granted the motion of defendant attorney Allen and his lawfirm to dismiss the complaint against them, unanimously affirmed, with costs.
The cause of action for common-law fraud alleges material omissions, disclosure of which ismandated by the Martin Act (General Business Law art 23-A), but for which there is no privateright of action (see Kerusa Co. LLC vW10Z/515 Real Estate Ltd. Partnership, 12 NY3d 236 [2009]). Defective conditionsthat—according to the complaint—were not disclosed to plaintiffs prior to purchasewere plainly required to be disclosed under the Attorney General's implementing regulations(see 13 NYCRR 20.7).
The cause of action for deceptive acts and practices (General Business Law § 349)was properly dismissed since it stemmed from a private contractual dispute between the partieswithout ramification for the public at large (see Green Harbour Homeowners' Assn. v G.H.Dev. & Constr., 307 AD2d 465, 468-469 [2003], lv dismissed 100 NY2d 640[2003]). To the extent the offering can be construed as directed at the public, the section 349claim is preempted by the Martin Act (see 511 W. 232nd Owners Corp. v Jennifer RealtyCo., 285 AD2d 244, 248 [2001]).
The cause of action for unjust enrichment is precluded by the existence of a valid [*2]agreement (see Paragon Leasing, Inc. v Mezei, 8 AD3d 54, 54-55 [2004];Jim Longo, Inc. v Rutigliano, 294 AD2d 541 [2002], lv denied 2 NY3d 701[2004]). Concur—Tom, J.P., Sweeny, Catterson, McGuire and RomÁn, JJ.