Bandler v Liberty Chevrolet, Inc.

[*1] Bandler v Liberty Chevrolet, Inc. 2013 NY Slip Op 50640(U) Decided on April 18, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 18, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
570844/09.

Michael Bandler, Plaintiff-Appellant, - -

against

Liberty Chevrolet, Inc., Defendant-Respondent, - and - Hot Wheelz, Inc., Nicholas Vitucci, Pro Logic Computers and JP Morgan Chase Bank, Defendants.

Plaintiff, as limited by his briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated August 24, 2006, which granted defendant-respondent's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), and denied, as moot, plaintiff's cross motion to amend the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), dated August 24, 2006, affirmed, with $10 costs, for the reasons stated by Ben R. Barbato, J. at Civil Court.

Even taking the allegations of the complaint as true, we agree that plaintiff failed to sufficiently state the essential elements of his claim for unjust enrichment (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]; cf. Murphy v 317-319 Second Realty LLC, 95 AD3d 443, 445 [2012]) and that, no actionable underlying tort having been pled, plaintiff's remaining cause for conspiracy must fail as well (see Dilimetin & Dilimetin v Stein, 297 AD2d 601, 602 [2002]).

In reaching the merits, we assume, without deciding, that plaintiff's appeal from the 2006 dismissal order was timely prosecuted and was not rendered academic by plaintiff's commencement of a subsequent action against defendant based upon the same underlying events (see and compare Velez v Feinstein, 87 AD2d 309, 312-313 [1982], lv dismissed in part and denied in part 57 NY2d 787 [1982]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 18, 2013