| Moezinia v Ashkenazi |
| 2013 NY Slip Op 02550 [105 AD3d 920] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Hertzl Moezinia, Respondent, v AlexanderAshkenazi, Defendant, and ABS Flushing Development, LLC,Appellant. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Jeffrey H. Weinberger of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract and unjustenrichment, the defendant ABS Flushing Development, LLC, appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.),dated September 7, 2011, as granted that branch of the plaintiff Hertzl Moezinia's motionwhich was to reargue his opposition to the motion of the defendant ABS FlushingDevelopment, LLC, for summary judgment dismissing the complaint insofar as assertedagainst it, which was granted in a prior order of the same court entered December 6,2010, and, upon reargument, in effect, vacated the original determination granting themotion, and thereupon denied the motion of the defendant ABS Flushing Development,LLC.
Ordered that the order dated September 7, 2011, is modified, on the law, by deletingthe provision thereof which, upon reargument, in effect, vacated the determination in theorder dated December 6, 2010, granting that branch of the motion of the defendant ABSFlushing Development, LLC, which was for summary judgment dismissing the breach ofcontract cause of action insofar as asserted against it, and thereupon denying that branchof the motion, and substituting therefor a provision, upon reargument, adhering to thedetermination in the order dated December 6, 2010, granting that branch of the motion ofABS Flushing Development, LLC; as so modified, the order dated September 7, 2011, isaffirmed insofar as appealed from, without costs or disbursements.
In 2005, the plaintiff Hertzl Moezinia began negotiations to purchase certaincommercial property in Flushing, Queens. He negotiated the purchase price down from$41 million to $26.5 million, and an agreement for the purchase was drafted, although itwas not executed. Moezinia and the defendant Alexander Ashkenazi then entered into ahandwritten agreement by which Moezinia assigned his purchase rights to Ashkenazi inexchange for a $1.5 million "assignment fee." On the same day, Ashkenazi executed anagreement to purchase the property for $26.5 million. The closing was scheduled for theend of June 2006.
One week prior to the closing, Ashkenazi directed his attorney to form a corporateentity, the defendant ABS Flushing Development, LLC (hereinafter ABS), to purchasethe property. [*2]According to the incorporationdocuments, Ashkenazi is not a member of ABS. Ashkenazi and Moezinia were present atthe closing, along with Chaim Babad, who appeared and signed the closing documentson behalf of ABS. As part of the closing, Ashkenazi received a fee and a promise of afuture fee for assigning his purchase rights to ABS. After the closing, Ashkenazi paid$780,000 of the $1.5 million "assignment fee" to Moezinia, but refused to pay theremainder.
Moezinia then commenced an action to recover damages for breach of contract andunjust enrichment against Ashkenazi and ABS. ABS and Ashkenazi separately movedfor summary judgment dismissing the complaint insofar as asserted against each of them,and the Supreme Court granted ABS's motion. Moezinia moved for leave to reargue. TheSupreme Court granted the motion to reargue and, upon reargument, in effect, vacatedthe original determination granting ABS's motion, and thereupon denied ABS's motion.ABS appeals.
Although the Supreme Court properly granted that branch of Moezinia's motionwhich was for leave to reargue, upon reargument the Supreme Court should haveadhered to its prior determination to the extent that it granted that branch of the motion ofABS which was for summary judgment dismissing the breach of contract cause of actioninsofar as asserted against it. ABS established its prima facie entitlement to judgment as amatter of law dismissing that cause of action by showing that it was not a party to thewritten agreement between Moezinia and Ashkenazi (see Elisa Dreier Reporting Corp. v Global NAPs Networks,Inc., 84 AD3d 122, 127 [2011]). In opposition, the plaintiff did not raise atriable issue of fact as to whether ABS intended to assume Ashkenazi's obligation (see Amalgamated Tr. Union Local1181, AFL-CIO v City of New York, 45 AD3d 788, 790 [2007]).
However, upon reargument, the Supreme Court correctly, in effect, vacated theoriginal determination granting that branch of the motion of ABS which was forsummary judgment dismissing the unjust enrichment cause of action insofar as assertedagainst it, and thereupon denied that branch of the motion. In opposition to ABS's primafacie showing, Moezinia submitted evidence showing that Ashkenazi directed theformation of ABS and executed an indemnity agreement and a personal guaranty onbehalf of ABS during the closing. Moezinia also submitted evidence showing that, at theclosing, he negotiated an additional rebate in the purchase price based on certainenvironmental issues and arranged for a mortgage assignment, which resulted insubstantial savings to ABS. As there were facts in dispute about ABS's receipt of benefitsat Moezinia's expense, ABS was not entitled to summary judgment dismissing the unjustenrichment cause of action insofar as asserted against it (see Mandarin Trading Ltd. vWildenstein, 16 NY3d 173, 182 [2011]). Skelos, J.P., Dickerson, Chambers andHinds-Radix, JJ., concur.