Kingston Oil Supply Corp. v Smith

Kingston Oil Supply Corp. v Smith 2012 NY Slip Op 09139 Decided on December 27, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 27, 2012
515037

[*1]KINGSTON OIL SUPPLY CORPORATION, Appellant,

v

JOHN SMITH, Respondent.

Calendar Date: November 15, 2012
Before: Mercure, J.P., Rose, Stein and Egan Jr., JJ.


John J. Greco, Kingston, for appellant.
John Smith, Athens, respondent pro se.

MEMORANDUM AND ORDER


Stein, J.

Appeal from an order of the Supreme Court (Pulver Jr., J.), entered February 10, 2012 in Greene County, which, sua sponte, dismissed the complaint.

Plaintiff, a home fuel oil distributor, admittedly delivered approximately 180 gallons of fuel oil to defendant's home erroneously. When the error was discovered, plaintiff sought to either pump out the fuel from defendant's oil tank or recover payment from defendant therefor. After defendant refused both requests, plaintiff commenced this action to recover the value of the fuel on the ground of defendant's unjust enrichment. Following a pretrial conference, Supreme Court dismissed the complaint, sua sponte, and this appeal by plaintiff ensued.[FN1]

We affirm. "The essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be [*2]recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation marks and citation omitted]). However, a showing that the plaintiff's actions have benefitted the defendant will not suffice to establish a cause of action for unjust enrichment (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 182; Sperry v Crompton Corp., 8 NY3d 204, 215-216 [2007]; Clark v Daby, 300 AD2d 732, 732 [2002], lv denied 100 NY2d 503 [2003]). The plaintiff must also demonstrate an existing relationship with, or an inducement by, the defendant (see Sperry v Crompton Corp., 8 NY3d at 215-216; compare ARB Upstate Communications LLC v R.J. Reuter, L.L.C., 93 AD3d 929, 933-934 [2012]).

Here, it is undisputed that defendant was never a customer of plaintiff and did not request that plaintiff deliver oil to him. Moreover, plaintiff's delivery tag demonstrates that the oil was supposed to be delivered to an address on a different street from defendant's residence, and neither the description of the house nor the location of the fuel intake set forth on the tag matched that of defendant's home. Thus, plaintiff is unable to demonstrate that its error was induced by defendant. In addition, defendant's refusal to compensate plaintiff was not against equity and good conscience, as defendant stated on the record before Supreme Court that plaintiff would not match the oil price for which defendant had contracted with a different distributor and defendant was forced to forfeit his ability to take advantage of the lower contract price because his fuel oil tank was full. Defendant further alleged that plaintiff's fuel oil caused his furnace to malfunction, necessitating repair by a service contractor. Finally, as both defendant and Supreme Court noted, pumping out the oil from defendant's fuel tank could result in further damages to defendant due to the possibility of an oil spill. Under these circumstances, we find no error in Supreme Court's determination that defendant was not unjustly enriched by his retention of plaintiff's fuel oil.

Nor do we find merit to plaintiff's argument that Supreme Court erred in dismissing its complaint, sua sponte. While such a dismissal is rarely permitted due to the potential for prejudice to the plaintiff, no prejudice was suffered by plaintiff here. Specifically, a sufficient record was developed at the pretrial conference demonstrating that there was no dispute as to the underlying facts. Inasmuch as only a legal question was presented and plaintiff's theory of unjust enrichment was meritless, for the reasons already set forth herein, it was not improper for Supreme Court to dismiss the complaint in the absence of a formal motion for such relief (see generally Martocci v Bowaskie Ice House, LLC, 31 AD3d 1021, 1022 [2006], lv dismised 7 NY3d 916 [2006], cert denied 552 US 918 [2007]; compare Hurd v Hurd, 66 AD3d 1492, 1493 [2009]).

Mercure, J.P., Rose and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, with costs. Footnotes

Footnote 1: "Although an order entered on a court's sua sponte motion is not appealable as of right because it is not considered an order deciding a motion made on notice, we will treat [plaintiff's] notice of appeal as an application for leave to appeal and grant that application" (Shields v Carbone, 99 AD3d 1100, 1101 n 2 [2012] [citation omitted]; see CPLR 5701 [a] [2], [c]; Sholes v Meagher, 100 NY2d 333, 335 [2003]; Kremen v Benedict P. Morelli & Assoc., P.C., 80 AD3d 521, 523 [2011]).