JPMorgan Chase Funding Inc. v. Cohan

138 A.D.3d 424, 27 N.Y.S.3d 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2016
• Docket: 731 151693/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 31, 2015, which denied plaintiff’s motion for summary judgment on the second, third, fourth and fifth causes of action and dismissing defendant’s amended counterclaim, and denied defendant’s cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant defendant’s motion as to the first and fifth causes of action, and otherwise affirmed, without costs.

The evidence presented by plaintiff on its second motion for summary judgment was not new, and plaintiff demonstrated no other sufficient cause for making the second motion (see Brown Harris Stevens Westhampton LLC v Gerber, 107 AD3d 526 [1st Dept 2013]).

Since plaintiff failed to establish that there was an express contract, or to raise an issue of fact as to the existence of an express contract, the first cause of action, alleging breach of contract, must be dismissed. The fifth cause of action, for account stated, should also be dismissed, as time-barred.

Issues of fact preclude summary judgment in either party’s favor on the second, third and fourth causes of action, alleging implied-in-fact contract, money lent, and unjust enrichment, and on defendant’s amended counterclaim for an accounting.

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing.

Concur — Tom, J.P., Friedman, Richter, Gische and Gesmer, JJ.