Rab Contractors, Inc. v. Stillman

Appellate Division of the Supreme Court of New York

Rab Contractors, Inc. v. Stillman

266 A.D.2d 70, 698 N.Y.S.2d 454, 1999 N.Y. App. Div. LEXIS 11624

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1999

StatusPublished

This text of 266 A.D.2d 70 (Rab Contractors, Inc. v. Stillman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rab Contractors, Inc. v. Stillman, 266 A.D.2d 70, 698 N.Y.S.2d 454, 1999 N.Y. App. Div. LEXIS 11624 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered August 24, 1998, which, to the extent appealed from as limited by the brief, granted defendants’ motion to dismiss plaintiff-appellant’s claims for breach of contract against the individual defendants, with leave to replead, and to dismiss plaintiff-appellant’s claims for unjust enrichment, fraud, conversion and conspiracy to [71]*71convert, unanimously modified, on the law, to reinstate plaintiff-appellant’s second cause of action for breach of contract against the individual defendants and his eighth cause of action for unjust enrichment, and otherwise affirmed, without costs.

Plaintiff-appellant sufficiently alleged an oral contract between him and the individual defendants and, accordingly, his second cause of action for breach of the alleged oral contract should not have been dismissed pursuant to CPLR 3211 (a) (7). Also improperly dismissed was plaintiff-appellant’s cause of action for unjust enrichment, since he sufficiently alleged his performance of numerous items of extra work in connection with the subject renovation project, outside the scope of the original oral agreement. Moreover, given the allegations that defendants promised a percentage of the ownership interest, or proceeds of the business to be run from the renovated premises, in lieu of a lump sum advance payment, imposition of a constructive trust upon the proceeds of that business may yet be found to be an appropriate form of relief.

Appellant’s remaining arguments have been considered and found unavailing. Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.

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—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered August 24, 1998, which, to the extent appealed from as limited by the brief, granted defendants’ motion to dismiss plaintiff-appellant’s claims for breach of contract against the individual defendants, with leave to replead, and to dismiss plaintiff-appellant’s claims for unjust enrichment, fraud, conversion and conspiracy to [71]*71convert, unanimously modified, on the law, to reinstate plaintiff-appellant’s second cause of action for breach of contract against the individual defendants and his eighth cause of action for unjust enrichment, and otherwise affirmed, without costs.

Plaintiff-appellant sufficiently alleged an oral contract between him and the individual defendants and, accordingly, his second cause of action for breach of the alleged oral contract should not have been dismissed pursuant to CPLR 3211 (a) (7). Also improperly dismissed was plaintiff-appellant’s cause of action for unjust enrichment, since he sufficiently alleged his performance of numerous items of extra work in connection with the subject renovation project, outside the scope of the original oral agreement. Moreover, given the allegations that defendants promised a percentage of the ownership interest, or proceeds of the business to be run from the renovated premises, in lieu of a lump sum advance payment, imposition of a constructive trust upon the proceeds of that business may yet be found to be an appropriate form of relief.

Appellant’s remaining arguments have been considered and found unavailing. Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.

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Bluebook (online)

266 A.D.2d 70, 698 N.Y.S.2d 454, 1999 N.Y. App. Div. LEXIS 11624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rab-contractors-inc-v-stillman-nyappdiv-1999.