619 N.Y.S.2d 613 | N.Y. App. Div. | 1994
—In an action to recover damages for breach of contract, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Wager, J.), dated May 21, 1992, as granted the branch of the third-party defendant’s motion which was to dismiss the first cause of action in the third-party complaint pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed insofar as appealed from, with costs.
The first cause of action pleaded in the third-party complaint seeks recovery in quasi contract based on the doctrine of unjust enrichment. However, the record indicates that the purported quasi contract arises "out of the same subject matter” (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 388) governed by an enforceable written contract between the same parties, dated September 1, 1988. Under these circumstances, the first cause of action in the third-party complaint was properly dismissed (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., supra; Radio Today v Westwood One, 684
