Paragon Leasing, Inc. v. Mezei

Jun 8, 2004
Versions:8 A.D.3d 54
777 N.Y.S.2d 645
2004 N.Y. App. Div. LEXIS 7829

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 13, 2003, which, upon reargument, insofar as appealed from as limited by the briefs, adhered to a prior order, same court and Justice, entered November 25, 2002, granting defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss plaintiff’s cause of action for unjust enrichment, unanimously affirmed, without costs. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.

Plaintiffs unjust enrichment claim is precluded by its written *55contract with a nonparty governing its right to compensation for the very services that allegedly unjustly enriched defendants (see Feigen v Advance Capital Mgt. Corp., 150 AD2d 281, 283 [1989], lv dismissed and denied 74 NY2d 874 [1989]). As it is undisputed that the written contract with the nonparty is valid and enforceable, plaintiff’s reliance on Seiden Assoc. v ANC Holdings (754 F Supp 37 [1991]) is misplaced (see Affiliated Capital Servs. Corp. v West Atl. City Assoc., 760 F Supp 1067, 1077 [1991]). We note the pending arbitration proceeding that plaintiff has commenced against the nonparty. Concur—Tom, J.P., Mazzarelli, Andrias, Ellerin and Lerner, JJ.