| GFRE, Inc. v U.S. Bank, N.A. |
| 2015 NY Slip Op 05640 [130 AD3d 569] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| GFRE, Inc., Appellant, v U.S. Bank, N.A.,Respondent, et al., Defendant. |
Gabor & Marotta, LLC, Staten Island, N.Y. (Richard M. Gabor of counsel), forappellant.
Hinshaw & Culbertson LLP, New York, N.Y. (Benjamin Noren and SchuylerKraus of counsel), for respondent.
In an action, inter alia, to recover damages for unjust enrichment and fraudulentmisrepresentation, the plaintiff appeals, as limited by its brief, from so much of an orderof the Supreme Court, Richmond County (Troia, J.), dated August 12, 2013, as grantedthose branches of the motion of the defendant U.S. Bank, N.A., which were pursuant toCPLR 3211 (a) (7) to dismiss the causes of action alleging unjust enrichment and fraudinsofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant U.S. Bank, N.A. (hereinafter U.S. Bank), obtained a judgment offoreclosure and sale in an action to foreclose a mortgage. The person who submitted thewinning bid at a public auction of the premises assigned the bid to the plaintiff, whoreceived a referee's deed after tendering the purchase price of $246,000. However, thejudgment of foreclosure and sale was later vacated, after it was determined that U.S.Bank had failed to properly serve process upon one of the parties to the foreclosureaction (see U.S. Bank, N.A. vBernhardt, 88 AD3d 871, 872 [2011]). It is undisputed that U.S. Bank refundedto the plaintiff the total amount of the purchase price.
The plaintiff commenced this action against, among others, U.S. Bank, asserting,among other things, causes of action to recover damages for unjust enrichment and fraud.U.S. Bank moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the causes ofaction alleging unjust enrichment and fraud insofar as asserted against it. The SupremeCourt, among other things, granted those branches of U.S. Bank's motion.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must"accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit withinany cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825, 827 [2007][internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88[1994]).
The Supreme Court properly granted that branch of U.S. Bank's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging unjust enrichment.The [*2]elements of a cause of action to recover forunjust enrichment are "(1) the defendant was enriched, (2) at the plaintiff's expense, and(3) that it is against equity and good conscience to permit the defendant to retain what issought to be recovered" (Mobarak v Mowad, 117 AD3d 998, 1001 [2014]). "Theessential inquiry in any action for unjust enrichment or restitution is whether it is againstequity and good conscience to permit the defendant to retain what is sought to berecovered" (Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415,421 [1972]; see Sperry vCrompton Corp., 8 NY3d 204, 215 [2007]).
Here, the plaintiff merely alleged in the amended complaint that U.S. Bank was"unjustly enriched in that it collected bank fees and interest." Even accepting theseallegations in the amended complaint as true, the amended complaint failed, as a matterof law, to sufficiently allege that U.S. Bank was enriched at the plaintiff's expense (see Lebovits v Bassman, 120AD3d 1198, 1199-1200 [2014]; Dee v Rakower, 112 AD3d 204, 214 [2013]; Clifford R. Gray, Inc. v LeChaseConstr. Servs., LLC, 31 AD3d 983, 988 [2006]; see generallyRestatement of Restitution § 157, Comment b). Since theamended complaint failed to state a cause of action alleging unjust enrichment againstU.S. Bank, the Supreme Court properly granted that branch of U.S. Bank's motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss that cause of action insofar as assertedagainst it.
The Supreme Court also properly granted that branch of U.S. Bank's motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging fraud insofaras asserted against it. "The elements of a cause of action sounding in fraud are a materialmisrepresentation of an existing fact, made with knowledge of the falsity, an intent toinduce reliance thereon, justifiable reliance upon the misrepresentation, and damages"(Introna v Huntington LearningCtrs., Inc., 78 AD3d 896, 898 [2010]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12NY3d 553, 559 [2009]). All of the elements of a fraud claim "must be supported byfactual allegations containing the details constituting the wrong" in order to satisfy thepleading requirements of CPLR 3016 (b) (Cohen v Houseconnect Realty Corp.,289 AD2d 277, 278 [2001]; seeJP Morgan Chase Bank, N.A. v Hall, 122 AD3d 576, 579 [2014]; House of Spices [India], Inc. vSMJ Servs., Inc., 103 AD3d 848, 850 [2013]).
Here, the amended complaint consisted of conclusory allegations regarding U.S.Bank's knowledge that it had commenced and prosecuted the underlying foreclosureaction without properly effecting service on all of the necessary parties. Furthermore, thefacts alleged in the amended complaint do not give rise to a reasonable inference thatU.S. Bank had knowledge of, or participated in, the alleged fraud (see Goel v Ramachandran, 111AD3d 783, 793 [2013]; High Tides, LLC v DeMichele, 88 AD3d 954, 959 [2011]).Since the amended complaint failed to state a cause of action alleging fraud against U.S.Bank, the Supreme Court properly granted that branch of U.S. Bank's motion which waspursuant to CPLR 3211 (a) (7) to dismiss that cause of action insofar as asserted againstit.
In light of our determination, we need not reach U.S. Bank's remaining contentions,which were raised, in effect, as alternative grounds for affirmance (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]; Matter of Fuchs v Itzkowitz,120 AD3d 682, 683 [2014]). Balkin, J.P., Austin, Miller and Maltese, JJ.,concur.