Vidal, Reynards & Moya, Inc. v. Mountain Springs Co.

248 A.D.2d 247, 671 N.Y.S.2d 219, 1998 N.Y. App. Div. LEXIS 2527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lewis Friedman, J.), entered on or about February 21, 1997, which granted defendant-respondent’s motion to dismiss the complaint against it, unanimously affirmed, without costs.

The cause of action against defendant-respondent for unjust enrichment was properly dismissed on the ground that the advertising services from which it allegedly benefited were provided by plaintiff pursuant to the latter’s contract with the codefendant to which respondent was not a party (see, Kagan v K-Tel Entertainment, 172 AD2d 375). Indeed, as the IAS Court noted, respondent sold its inventory of the product plaintiff advertised to the codefendant before the agreement between plaintiff and the codefendant was signed, and thus respondent could not have been enriched by plaintiffs services, unjustly or otherwise. We have considered plaintiffs argument that defendant-respondent can be held liable by piercing the codefendant’s corporate veil, and find insufficient proof of both dominance and control, on the one hand, and fraud or other wrongdoing, on the other, to warrant a trial on that theory.

Concur — Ellerin, J. P., Wallach, Rubin, Tom and Saxe, JJ.