M & B Joint Venture, Inc. v. Laurus Master Fund, Ltd.

49 A.D.3d 258, 853 N.Y.2d 300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2008
• Status: Published

Opinions

Plaintiff claims an equitable lien in the face of its failure to obtain an allegedly agreed-upon mortgage to secure a $490,000 bridge loan it extended to defendant Penthouse International, Inc., in connection with the refinancing of the latter’s townhouse, which mortgage was intended to be secondary to Laurus’s $24 million consolidated first mortgage. There was a basis for the notice of pendency (see 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 320 [1984]). The evidence, not only of the bridge loan but also of the conversation with a Laurus official and a Penthouse representative during which Penthouse allegedly agreed to the mortgage on the property and Laurus was made aware of the mortgage, supplemented the allegations of the complaint to sufficiently state a cause of action for an equitable lien (see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996]).

However, the cause of action for unjust enrichment should have been dismissed because plaintiff failed to identify the benefit bestowed on Laurus as a result of the bridge loan (see CDR Créances S.A. v Euro-American Lodging Corp., 40 AD3d 421, 422 [2007]). The general conclusion that Laurus’s entire transaction would otherwise not have gone through was neither alleged in the complaint nor a reasonable inference therefrom. Similarly, it was not alleged that plaintiff extended the loan at Laurus’s behest (see General Sec. Prop. & Cas. Co. v American Fleet Mgt., Inc., 37 AD3d 345, 346 [2007]; Kagan v K-Tel Entertainment, 172 AD2d 375, 376 [1991]).

We have considered appellants’ other contentions and find them unavailing. Concur—Lippman, P.J., Mazzarelli and Sweeny, JJ.