Stone v. Solarbrite, Inc.

128 A.D.2d 696, 512 N.Y.S.2d 784, 1987 N.Y. App. Div. LEXIS 44383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1987
• Status: Published

Opinion

In an action to recover damages for unjust enrichment, the plaintiff appeals, as limited by his letter, from so much of an order of the Supreme Court, Westchester County (Palella, J.), entered July 3, 1986, as granted a motion of the defendant New York Tile Wholesale Corporation to dismiss the second cause of action asserted against it for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

Viewing the pertinent allegations of the second cause of action of the complaint most liberally in favor of the plaintiff, we conclude that it does not state a cause of action in recognizable form (see, World Wide Adj. Bur. v Gordon Co., 111 AD2d 98, 99). Although the plaintiff seeks to recover on a theory of unjust enrichment, his second cause of action does not contain the necessary allegations establishing that the respondent unjustly received something of value at the expense of the plaintiff (see, McGrath v Hilding, 41 NY2d 625, 629; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421, remittitur amended 31 NY2d 678, cert denied 414 US 829; Alko Mfg. Corp. v Neptune Meter Co., 20 AD2d 635, affd 16 NY2d 777). Bracken, J. P., Rubin, Sullivan and Harwood, JJ., concur.