| Navillus Tile, Inc. v George A. Fuller Co., Inc. |
| 2011 NY Slip Op 03221 [83 AD3d 919] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Navillus Tile, Inc., Doing Business as Navillus Contracting,Appellant, v George A. Fuller Company, Inc., et al.,Respondents. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Brian T.Belowich, Alfred E. Donnellan, and Michael J. Schwarz of counsel), for respondent George A.Fuller Company, Inc.
In an action, inter alia, to recover damages for unjust enrichment and to foreclose amechanic's lien, the plaintiff appeals, as limited by its brief, from so much of an order of theSupreme Court, Westchester County (O. Bellantoni, J.), dated April 12, 2010, as granted thosebranches of the motion of the defendant George A. Fuller Company, Inc., which were forsummary judgment dismissing the second and third causes of action insofar as asserted against it,and, in effect, searched the record and awarded summary judgment dismissing those causes ofaction insofar as asserted against the defendants New Rochelle IDA and Safeco InsuranceCompany of America.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the motion of the defendant George A. Fuller Company, Inc., which was forsummary judgment dismissing the third cause of action insofar as asserted against it andsubstituting therefor a provision denying that branch of the motion, and (2) by deleting theprovision thereof, in effect, searching the record and awarding summary judgment dismissing thethird cause of action insofar as asserted against the defendants New Rochelle IDA and SafecoInsurance Company of America; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
Contrary to the plaintiff's contention, the Supreme Court had authority to search the recordand award summary judgment to the nonmoving defendants (see CPLR 3212 [b]; JMD Holding Corp. v Congress Fin.Corp., 4 NY3d 373, 385 [2005]).
The Supreme Court properly awarded summary judgment dismissing the second cause ofaction alleging unjust enrichment. "It is impermissible . . . to seek damages in anaction sounding in quasi contract where the suing party has fully performed on a valid writtenagreement, the existence of which is undisputed, and the scope of which clearly covers thedispute between the parties" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382,389 [1987]; see Goldman vMetropolitan Life [*2]Ins. Co., 5 NY3d 561, 572[2005]). Although the defendants failed to advance this particular contention before the SupremeCourt, this issue may be raised for the first time on appeal, since it is one of law appearing on theface of the record and it could not have been avoided had it been raised at the proper juncture (see Matter of Bayley Seton Hosp. v NewYork City Water Bd., 66 AD3d 670, 672 [2009]; Honeyman Point Beach Assn., Ltd. v Schiff, 64 AD3d 681, 682[2009]).
However, the Supreme Court erred in awarding summary judgment to the defendantsdismissing the third cause of action to foreclose a mechanic's lien on the ground that it wasbarred by the time limitation clause in the contract between the plaintiff and the defendantGeorge A. Fuller Company, Inc. The one-year time limitation clause expressly applied only toactions "on the contract," and did not extend to an action to foreclose a mechanic's lien (compare JC Ryan EBCO/H&G, LLC vLipsky Enters., Inc., 78 AD3d 788, 789 [2010]). Skelos, J.P., Belen, Lott and Cohen, JJ.,concur.