888 Construction, Inc. v. City of Troy

New York Supreme Court

888 Construction, Inc. v. City of Troy

82 Misc. 2d 1004, 371 N.Y.S.2d 121, 1975 N.Y. Misc. LEXIS 2761

DecidedJuly 23, 1975

StatusPublished

This text of 82 Misc. 2d 1004 (888 Construction, Inc. v. City of Troy) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

888 Construction, Inc. v. City of Troy, 82 Misc. 2d 1004, 371 N.Y.S.2d 121, 1975 N.Y. Misc. LEXIS 2761 (N.Y. Super. Ct. 1975).

Pincite

Opinion

Edward S. Conway, J.

This is a motion by the defendant for an order dismissing the complaint pursuant to CPLR 3211 (subd [a]) upon the grounds that the complaint does not state a cause of action against the defendant.

The action on which the instant motion is predicated is for an alleged unjust enrichment in the sum of $3,500.10 which is the amount of the fee charged by the defendant City of Troy for a building permit issued to plaintiff for permission to construct garden apartments in the City of Troy.

The complaint alleges that a certain corporation, Troy Heights Development Corp., the owner of certain lands in the City of Troy, New York, entered into a contract with the [1005]*1005plaintiff whereby plaintiff agreed to construct a 270-unit garden apartment building on the premises. Further, the complaint alleges that on October 4, 1973 defendant issued a building permit for which plaintiff paid a fee of $3,500.10 and that subsequently Troy Heights Development Corp. breached the contract and without cause dismissed the plaintiff from the project. That on November 5, 1974, defendant issued a new building permit to the Troy Heights Development Corp. with respect to the same project, and that plaintiff duly made a written demand for the return of the fee of $3,500.10 and defendant refused to return same.

The movant contends that the fee was paid pursuant to the provisions of section 10-23 of the Code of Ordinances of the City of Troy; that there is no provision in the code for a refund and in the absence of statutory authority the money may not now be repaid to the plaintiff; and that no facts are alleged in the complaint to support a theory of unjust enrichment.

This court must agree with these contentions of the defendant.

The motion to dismiss the complaint is granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Edward S. Conway, J.

This is a motion by the defendant for an order dismissing the complaint pursuant to CPLR 3211 (subd [a]) upon the grounds that the complaint does not state a cause of action against the defendant.

The action on which the instant motion is predicated is for an alleged unjust enrichment in the sum of $3,500.10 which is the amount of the fee charged by the defendant City of Troy for a building permit issued to plaintiff for permission to construct garden apartments in the City of Troy.

The complaint alleges that a certain corporation, Troy Heights Development Corp., the owner of certain lands in the City of Troy, New York, entered into a contract with the [1005]*1005plaintiff whereby plaintiff agreed to construct a 270-unit garden apartment building on the premises. Further, the complaint alleges that on October 4, 1973 defendant issued a building permit for which plaintiff paid a fee of $3,500.10 and that subsequently Troy Heights Development Corp. breached the contract and without cause dismissed the plaintiff from the project. That on November 5, 1974, defendant issued a new building permit to the Troy Heights Development Corp. with respect to the same project, and that plaintiff duly made a written demand for the return of the fee of $3,500.10 and defendant refused to return same.

The movant contends that the fee was paid pursuant to the provisions of section 10-23 of the Code of Ordinances of the City of Troy; that there is no provision in the code for a refund and in the absence of statutory authority the money may not now be repaid to the plaintiff; and that no facts are alleged in the complaint to support a theory of unjust enrichment.

This court must agree with these contentions of the defendant.

The motion to dismiss the complaint is granted.

Cite This Page — Counsel Stack

Bluebook (online)

82 Misc. 2d 1004, 371 N.Y.S.2d 121, 1975 N.Y. Misc. LEXIS 2761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/888-construction-inc-v-city-of-troy-nysupct-1975.