| PRG Brokerage Inc. v Aramarine Brokerage, Inc. |
| 2013 NY Slip Op 04697 [107 AD3d 559] |
| June 20, 2013 |
| Appellate Division, First Department |
| PRG Brokerage Inc.,Respondent-Appellant, v Aramarine Brokerage, Inc.,Appellant-Respondent. |
—[*1] Carney & McKay, Garden City (Robert B. McKay of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), enteredApril 2, 2013, which, to the extent appealed from as limited by the briefs, granteddefendant's motion for summary judgment dismissing the complaint, and deniedplaintiff's cross motion for summary judgment on its claims for breach of contract andunjust enrichment; denied defendant's motion for summary judgment on its constructivetrust counterclaim, granted plaintiff's cross motion for summary judgment dismissing thatcounterclaim, and denied the cross motion for summary judgment dismissing defendant'scounterclaim for an accounting; and granted plaintiff's cross motion to strike from therecord a mediation memorandum, unanimously affirmed, with costs.
The court properly rejected plaintiff's breach of contract and unjust enrichmentclaims. As found by the motion court, plaintiff failed to demonstrate that the contractbetween the parties entitled it to any portion of the commissions paid to defendant bynonparty Highlands. In fact, the record supports the opposite conclusion; that is, thatplaintiff was well aware that the money paid by Highlands constituted only defendant'sportion of collected commissions. The unjust enrichment claim was also properlydismissed because where, as here, "the parties executed a valid and enforceable writtencontract governing a particular subject matter, recovery on a theory of unjust enrichmentfor events arising out of that subject matter is ordinarily precluded" and "[o]nly where thecontract does not cover the dispute in issue may a plaintiff proceed upon a quasi-contracttheory of unjust enrichment" (Ashwood Capital, Inc. v OTG Mgt., Inc., 99 AD3d 1, 10[1st Dept 2012] [internal quotation marks and citations omitted]).
Defendant's constructive trust claim was also properly dismissed, since defendantfailed to establish that plaintiff had no right to collect the fees at issue, or, moreimportantly, that defendant had a right to share in the allegedly inappropriately chargedfees (see Simonds v Simonds, 45 NY2d 233, 241 [1978]; Sharp vKosmalski, 40 NY2d 119 [1976]). However, defendant's claim for an accounting ofsecond-year premiums is viable and may proceed.
Consideration by the court of plaintiff's cross motion "was not erroneous, eventhough it was served after the 120-day cutoff [because such] motion was largely based onthe same arguments raised in [defendant's] timely motion, and the same findings" couldbe used to find or reject judgment in favor of both parties (see Altschuler v Gramatan Mgt.,Inc., 27 AD3d 304, [*2]304-305 [1st Dept 2006][citations omitted]).
Finally, the court properly excluded the mediation memorandum, which was createdby plaintiff in a prior litigation for purposes of settlement discussions. The centralquestion for the court was why defendant sought to admit the mediation statement. If itwas being offered because it contained a factual admission by plaintiff, that use would beallowed, whether or not "the statement [wa]s contained in a settlement document"(Central Petroleum Corp. v Kyriakoudes, 121 AD2d 165, 165 [1st Dept 1986],lv dismissed 68 NY2d 807 [1986] [allowing the use of a settlement document forpurposes of defendant's admission that it had been properly served]). If, however, themediation statement was "prepared [solely for purposes of] settlement discussions" andthus was not being offered for its factual content, admission would have been improper(D.B. Zwirn SpecialOpportunities Fund, L.P. v Brin Inv. Corp., 96 AD3d 447, 448 [1st Dept 2012][excluding spreadsheet prepared for settlement discussions], citing CPLR 4547).
Here, the court properly found that defendant did not seek to introduce the mediationstatement because it admitted some fact, like the proper service admission in CentralPetroleum (121 AD2d 165). Rather, defendant sought to utilize numbers andcalculations "prepared [solely for purposes of] settlement discussions," like thespreadsheet in D.B. Zwirn (96 AD3d at 448).
We have considered the parties' remaining arguments and find them unavailing.Concur—Tom, J.P., Acosta, Saxe and Freedman, JJ.