| Krigsfeld v Feldman |
| 2014 NY Slip Op 01585 [115 AD3d 712] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Jana Krigsfeld et al.,Respondents-Appellants, v Arkadi Feldman et al.,Appellants-Respondents. |
—[*1] Adam Leitman Bailey, P.C., New York, N.Y. (Jeffrey R. Metz of counsel), forrespondents-appellants.
In an action to recover damages for breach of contract, unjust enrichment, andconversion, the defendants appeal, as limited by their brief, from so much of a judgmentof the Supreme Court, Kings County (Vaughan, J.), entered March 8, 2012, as, upon ajury verdict, is in favor of the plaintiffs and against them in the principal sums of $85,000for breach of contract and $90,000 for unjust enrichment, and the plaintiffs cross-appeal,as limited by their brief, from so much of the same judgment as, upon an order of thesame court (Sunshine, Ct. Atty. Ref.), dated January 8, 2012, made after a hearing, failedto award them damages for conversion.
Ordered that the judgment is reversed, on the law and in the exercise of discretion,without costs or disbursements, the order dated January 8, 2012, is vacated, and a newtrial is granted on all issues.
In its charge to the jury, the trial court committed several errors that warrant a newtrial. Over the defendants' objections, the trial court failed to instruct the jury that one ofthe essential elements of a cause of action for breach of contract is that the plaintiffsperformed under the contract (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83AD3d 804, 806 [2011]; PJI 4:1). The trial court compounded its error when itmischaracterized the nature of the plaintiffs' breach of contract cause of action bycharging the jury on a theory of liability that was not pleaded in the complaint (see Ciarelli v Lynch, 22 AD3d987, 988-989 [2005]). Further, the trial court improperly conflated the causes ofaction for breach of contract and unjust enrichment by telling the jury "if you determinethere was a breach of contract and unjust enrichment," and "if you determine it was abreach of contract for unjust enrichment . . . you will then determine[damages]." In any event, the trial court should have charged the jury that the plaintiffscould not recover damages under their cause of action alleging the quasi-contract claimof unjust enrichment if the jury found that the parties entered into an oral contract whichcovered the same subject matter (see Woss, LLC v 218 Eckford, LLC, 102 AD3d 860, 862[2013]; A. Montilli Plumbing &Heating Corp. v Valentino, 90 AD3d 961, 962 [2011]). Here, the jury did findthat there was a valid and enforceable contract between the parties that the defendantsbreached, and thus, the plaintiffs could not recover for unjust enrichment (see A.Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d at 962). Under thesecircumstances, the trial court's instructions were "inconsistent, erroneous, [and]confusing" (Rakoff [*2]v New York City Dept. of Educ., 110 AD3d 780,781 [2013] [internal quotation marks omitted]). Although only the defendants' objectionto the trial court's failure to charge the element of performance is preserved for appellatereview, we reach these issues because the errors were of such a fundamental nature thatthey warrant the invocation of our interest of justice jurisdiction (see Martin v City ofCohoes, 37 NY2d 162, 165 [1975]; Ciarelli v Lynch, 22 AD3d at 989-990;Rudolf v Kahn, 4 AD3d408, 409 [2004]; Casiero v Stamer, 308 AD2d 499, 500 [2003]).
The plaintiffs contend on their cross appeal, inter alia, that the special referee erred indetermining that they were not entitled to damages on their cause of action forconversion. We note that the record indicates substantial juror confusion, including threenotes the jury sent to the trial court and its contradictory verdict on the plaintiffs' cause ofaction for conversion. On the record presented, the matter should not have been referredto the special referee to determine the damages issue on the cause of action forconversion. In light of the fundamental charge errors with respect to the causes of actionfor breach of contract and unjust enrichment and indications of substantial jurorconfusion affecting the cause of action for conversion, we direct a new trial on all causesof action, vacate the order dated January 8, 2012, and direct a new trial on all issues(see Roberts v County of Westchester, 278 AD2d 216, 217 [2000]; Clarke vOrder of Sisters of St. Dominic, 273 AD2d 431, 432 [2000]).
The parties' remaining contentions are academic in light of our determination.Balkin, J.P., Chambers, Lott and Hinds-Radix, JJ., concur.