Schultz v Gershman

Schultz v Gershman 2009 NY Slip Op 08951 [68 AD3d 426] December 3, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Douglas Schultz et al., Appellants,
v
Laurence Gershman et al., Respondents, et al., Defendant.

—[*1] Sadis & Goldberg, LLP, New York (Douglas R. Hirsch of counsel), for appellants.

Thomas M. Mullaney, New York, for Laurence Gershman, respondent.

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains (Brian T. Belowich of counsel), for Charles Omphalius, Michael Caprio, John I. Keay, Jr. and Kevin Mannix, respondents.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered October 10, 2008, which, insofar as appealed from as limited by the brief, granted defendant Laurence Gershman's motion to dismiss the cause of action for breach of contract as against him and granted the motion of defendants Omphalius, Caprio, Keay and Mannix to dismiss the cause of action for unjust enrichment as against them, unanimously modified, on the law, to deny Gershman's motion, and otherwise affirmed, with costs against Laurence Gershman in favor of plaintiffs.

The court should not have considered the Bloomberg Finance L.P. report demonstrating the trading history of the subject stock, since it was improperly raised for the first time in Gershman's reply (see McNair v Lee, 24 AD3d 159 [2005]). In any event, the report does not conclusively establish a defense to plaintiffs' allegations (see Leon v Martinez, 84 NY2d 83, 88 [1994]). While it demonstrates that the stock was trading in December 2006, it does not conclusively establish that a "liquid, public market" for the shares had developed as that term was defined in the parties' agreements. [*2]

Plaintiffs' unjust enrichment cause of action is barred by the existence of the contract between the parties (see Goldstein v CIBC World Mkts. Corp., 6 AD3d 295, 296 [2004]). Concur—Gonzalez, P.J., Tom, Andrias, Nardelli and Richter, JJ.