Wong v Moy

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Wong v Moy 2012 NY Slip Op 32566(U) October 5, 2012 Supreme Court, New York County Docket Number: 601048/2008 Judge: Barbara R. Kapnick Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1011012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART Index Number : 60104812008 WONG, BENNY 341 INDEX NO. vs MOY, ELMA MOTION DATE , Sequence Number : 005 MOTION SEQ. NO. SUMMARY JUDGMENT MOTION CAL. NO. + The following papers, numbered 1 to were read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits $5 Cross-Motion: Yes No Upon the foregoing papers, it is ordered that this motion ad Q.Rs%-VWtloAj W Q &Ci&." ; q Dated: Check one: FINAL DISPOSITION 0 DO NOT POST n REFERENCE SUBMIT ORDER/ JUDE. 0 SETTLE ORDER/ JUDG. Check if appropriate: I . . ~NON-FINA*Sd&TION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IA PART 39 X ______l_____ll_______l___________ BENNY WONG and L&W DEVELOPMENT I N C , , Plaintiffs, DECISION/ORDER Index No. 601048/08 M o t i o n Seq. No. 0 0 5 -againstELMA MOY and F L O R E N T I N E MUSIC T U T O R I A L , INC., 6( P e t i-t ione r , -aqainst> t C H I N E S E AMERICAN M E D I A H O L D I N G I N C . a / k / a CHUNG WAH COMMERCIAL BROADCASTING P f .' -* i This action arises out of the purchase and subsequent management of a Chinese-language radio station in N e w Y o r k City known as Chung Wah Commercial Broadcasting Company, Inc. ("CWCB") , The original four-count Complaint asserted causes of action for breach of contract, fraud, breach of fiducj.ary duty, and declaratory a n d injunctive relief. By Decision and Order dated April dismissed the action in its entirety. 13, 2009, this Court Plaintiff then moved to reargue, and by Decision and Order dated October 5, 2009, the C o u r t [* 3] granted plaintiffs' motion reargument, for to the exten't of rei,nstating the first and second causes of action (for breach of contract and fraud, respectively) as asserted by plainti-ff Benny Wong ("Wong") only. This Court also granted plai.ntiffs' motion to remove the monetary claims proceeding, F l o r e n t i n e M u s i c in & the above-captioned summary Tutorial I n c . v C h i n e s e American Media H o l d i n g I n c . , pending under L & T Index Number 06/3987/08 (the "Holdover Proceeding"), from the Civil Court and consolidate it with the instant action for joint trial. Defendants' Verified Answer filed on December 7, 2009, asserts counterclaims for use and occupancy of the Premises; for payment of certain expenses of CWCB, and installment payments to a third party, pursuant to the parties' agreements; for restoration w o r k done at defendants' premises; and for damages and attorneys' fees resulti-ny from plaintiffs mechanic's lien filing and wilfully exaggerating + Defendants Elma Moy ("Moy") and Florentine Music Inc. a ("Floren,t:ine") now move for & Tutorial, parti-a1 summary judgment dismissing Wong's second cause of action for fraud. They also move for partial summary judgmemt on their first counterclaim for rental income for the use and occupancy of Florentine's premises, and on their fourth counterclaim for payment -2- of certain installment [* 4] payments pursuant lo the parties agreements. In addition, Florentine moves for partial summary judgment on its petition for use and occupancy against respondent Chinese American Media Holding (together with CWCB, CAMH ). Inc. Plaintiffs cross-move f o r partial summary judgment, claiming that Wong was not obligated to enter into a lease or make lease payments under the parties agreement, and also seeking constructi.on costs for renovation work performed at Florentine s premises. The facts of this c a s e were stated in detail in the abovereferenced April 13 and October 5, 2009 Decisions and Orders. Therefore, the C o u r t presumes that the parties are familiar with the facts and the facts are not restated here. To the extent that additional f a c t s are necessary to resolve the instant motions, they are stated in the following analysis. Discussion Moy and Florentine s Suininary J u d g m e n t Motion Moy seeks summary judgment on her fourth counterclaim, which is based upon Moy s purchase of CAMH from non-party Kin Won Leung ( Leung ) for $648,000, pursuant to a Sale Agreement signed by Moy and Leung on January 11, 2005. Under the Sale Agreement, Moy paid $129,600 at the closing and agreed to pay the balance in 48 equal monthly installments o f $10,800. Moy claims that, pursuant -3 - [* 5] to the Shareholder Agreement beLween Moy and Wong, dated August 31, 2007, Wong is solely responsible for the last 24 payments of $10,800 each due to Leung lrom February 2008 through January 2010, totaling $300,000. Paragraph 5 of the Shareholder Agreement provided that Wong or the Business shall be fully responsible for the balance of the payments under the S a l e Agreement for CWCR between Kin Won Leung and Elma Moy s i g n e d on 1/11/2005 with the remaining twenty f o u r (24) payments of $10,800,00 each starting September, 2007. Wong does not dispute that he s i g n e d the 2007 Shareholder Agreement, but rather, he claims that the equipment Moy purchased was garbage, that Moy was cheated by Leung, and that, therefore, Leung was not entitled to any money. Wong EBT Tr., 9/14/10 at 153. Thus, it is undisputed that Wong failed to make 24 payments of $10,800, as required under the 2007 Shareholder Agreement. has made a prima Therefore, Moy facie showing of her entitlement to summary judgment on this counterclaim. I In a separate action L e u n g v Moy ( S u p Ct, Kings County, Index No. 8297/10), judgment was entered against Moy on January 6, 2011 for the 24 outstanding payments owed to Leung, with interest, in an amount totaling $306,828.71. Leung and Moy stipulated to settle the judgment for $300,000, which Moy f u l l y paid on March 17, 2011. Moy Aff., Exs. I, J, K. -4- [* 6] In opposition, Wony argues that Moy owed fiduciary obligations to him, and that she took advantage of Wong's trust by misrepresenting and concealing the true fi-nancial condition of CAMH. Wong Opp. Bri.ef, at 18. In essence, this argument coincides with Wong's second cause of action for fraud, which i.s based upon Moy's alleged misrepresentations that CAMH "was profitable, or at least broke even, in the past, that the parties would be equal shareholders in such enterprise and equally share the costs and burdens of setting up the venture," and that the venture would operate rent-free from the premises of Florentine (of which Moy is the president), located at 384 Broadway in New York City "Premises") * (the Complaint, T 72. A fraud claim requires a showing of "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made f o r the purpose of inducing the other party to rely upon it, justifiable reliance of the other misrepresentation or material. omission, a n d injury. party 'I on the Lama H o l d i n g Co. v S m i t h Barney, 88 NY2d 413, 421 (1996). As a preliminary matter, at his deposition, Wong admitted that, at the time of his initial investment, he knew that the radio station was not profitable, that the f a c i l i t y was not very good and that the equj.pment was very old, thereby undermini,ng his claim that -5- [* 7] Moy misrepresented profitability. OL concealed information concerning 7/22/10 Wonq TI., at 104-106. CAMH s Moreover, Wong c l a i m s that he reached an agreement with Moy in September 2006, whereby Wong would invest and become a 50% owner j~n CAMH and Moy would provide an annual sales report show the history Lo of profitability of the radio station. ComplainL, 9C 17. According to Worig, in furtherance of this agreement, on October 20, 2006, Wong and Moy entered into and signed a Shareholder Agreement. 19. Id., ¶ However, t h e record before this Court contains no evidence of a wri tten agreement from 2006, arid Wong admitted at his deposition that there was no written agreement in 2006. 7/22/10 Wong Tr., at 112. When Wong and Moy reduced their agreement to writing in the 2007 Shareholder Agreement, they represented that their agreement was the result of lengthy discussion and negotiation between them~el~vesand their business advisors, I and identified the parties efforts to restore the mutual willingness to continue their business relationships [ s i c ] which has developed into a modified relationship as set forth herein. Shareholder Agreement, ¶ Wong and Moy also agreed that [alny prior discussion or 6. representation in [sic] contrary to the provisions set ¬orth herein s h a l l be deemed merged into and be controlled by this agreement. Id., ¶ 9. Thus, it appears that Wong knew about all of Moy s -6- [* 8] alleged misrepresentations a n d concealment at the time that he entered i n t o the Shareholder Agreement, and yet he expressly agreed to modify his business relationship with Moy. He further stated that the Shareholder Agreement would supersede any prior discussions or representations, without incorporating any such promises into the Shareholder Agreement. Thus, the evidence makes clear that Moy neither misrepresented facts nor intended to defraud Wong . Furthermore, "[ais a matter of law, a sophisticated plaintiff cannot establish that it entered into an arm s length transaction in justifiable reliance on alleged misrepresentations if that plaintiff failed to make use of the means of verification that were available to it. UST P r i v a t e E q u i t y I n v s . Fund v Salomon Smith B a r n e y , 288 AD2d 8 7 , 88 ( l s tDept 2001); see also HSH Nordbank AG v UBS AG, 95 A D 3 d 185 (l , Dep t 2012); A b r a h a r n i v UPC C o n s t r . C o . , 224 AD2d 231, 234 (1 Dept 1996) ( sophisticated businessmen[] had a duty to exercise ordinary dil-igence and conduct an independent appraisal of the r i s k they were assuming ), Here, the element of justifiable reliance is undermined by Wong s 3.5 years of business experience preceding this lawsuit, Wong owns and controls plaintiff L&W Development, Inc. ( \L&W ),a constructi.on company (7/22/10 Wong Tr,, at 5-12), a n d he admits -7- [* 9] having knowledge of Moy's business investments, as well as having advised her on business matters. of law, Wony, a Wong Aff. , sophisticated ¶¶ 10-12. As a matter businessman, could not have justifiably relied upon any oral representations by Moy concerning the financial coriditj.on of CRMH. conduct ordi-nary diligence by Rather, Wong had a duty to independently appraising the financial condition of CAMH prior to entering the joint venture, which he admits he failed to do. Wong "can hardly Wong Aff., ¶¶ 28, 39. In s h o r t , claim with any credibility that he, a savvy businessman, entered into the resulting agreement [I lulled by faith or trust i n the part [y] across the bargaining table . . . . " Shea v Harnbros PLC, 244 A D 2 d 3 9 , 47 (1'" Dept 1998). Wong's assertion that the parties' agreement was obtained by fraud in the inducement is also undermined by the fact that it is based upon conclusory statements, not genuine claims based upon proof. aff'd Citibank v Plapinger, 107 AD2d 627, 628 ( l ' t Dept 1985), 66 N Y 2 d 90 (1985) ("such evidence, in order to defeat a motiori for summary judgment, must be genuine and based on proof, not shadowy and conclusory statements") . For the foregoing reasons, Wong's argument that he was fraudulently induced to enter the j o i n t venture is wi-thout merit, and Wong's action for fraud is dismissed, -8- second cause of [* 10] Wong n e x t a r g u e s t h a t h e i s e n t i t l e d t o r e s c i s s i o n , there was no meeting the of minds. According to because Wong, Moy u n d e r s t o o d t h a t Wont). p u r c h a s e d CAMH o n l y i n o r d e r t o m a i n t a i n t h e radio station profitability, In a as cultural. institution regardless of its while Wong c l a i m s t h a t h e n e v e r would h a v e i n v e s t e d CAMH h a d h e known t h a t i t was l o s i n g money, h a d Wong c o n d u c t e d A s d i s c u s s e d above, o r d i n a r y d i - l i g e n c e b e f o r e enter,i.ng i n t o t h e v e n t u r e w i t h Moy, h e would h a v e d i s c o v e r e d t h e f i n a n c i a l c o n d i t i o n of Moreover, CAMH. agreement in his Wong a f f i r m e d t h e v a l i d i t y o f t h e p a r t i e s of breach contract cause of action, and by e n t e r i n g i n t o t h e 2 0 0 7 S h a r e h o l d e r Agreement e v e n t h o u g h h e knew a b o u t Moy s a l l e g e d f r a u d b e f o r e h a n d . the same agreement for purposes Wong c a n n o t now d i s a f f i r m of resci,ssion. Brown v M a n u f a c t u r e r s T r u s t Co., 278 NY 3 1 7 , 3 2 4 ( 1 9 3 8 ) ( [ o l n e c a n n o t r e l y on a c o n t r a c t a s v a l i d a n d s e e k t o recover b e c a u s e o f i t s b r e a c h , which c o n s t i t u t e s a n a f f i r m a n c e o f t h e c o n t r a c t , and t h e n have a r e c o v e r y on t h e g r o u n d t h a t t h e c o n t r a c t i s v o i d , w h i c h c o n s t i t u t e s a d i s a f f i r m a n c e of t h e same c o n t r a c t ) . T h e r e f o r e , t h i s argument i s unpersuasive. Wong because next argues paragraph 5 s u p r a , i s ambiguous. in the first of that the summary judgment Shareholder cannot Agreement, be granted referred to S p e c i f i c a l l y , Wong c l a i m s t h a t t h e word o r sentence is ambiguous, -9- because it may mean an [* 11] alternative, " or it may mean \\twoalternatives of the same thing." Wong Opp. Brief, at 21, citing Merriam-Webster's Online Dictionary. The Court agrees conclusion. with Wong's definitions, bu't not with his Under the plain language of paragraph 5, Wong or the Business could be I.i.able. The f a c t that Moy seeks to hold Wong responsible for his promise under paragraph 5 does not. mean that she is required, or even attempting, t o hold "Wonq and the Business . . . responsible," as is argued by (emphasis in original). Worig. Wong Opp. Brief, at 21 Rather, Moy merely seeks to enforce paragraph 5 of the Shareholder Agreement against Wong, as one of two alternatives. U n i t e d S t a t e s P r i n t . & Lithograph Co. v Powers, 2 3 3 NY 143, 152 (1922) ("promises by two or more persons create a joint duty unless the contrary is stated") * Therefore, Wong's argument that there is an ambiguity is unpersuasive. N e w York C i t y Off-Track Betting Corp. v S a f e Factory O u t l e t , Inc,, 28 A D 3 d 1 7 5 , 177-178 ( l S t Dept 2006) ("mere assertion by a party that contract language means something other than what is clear when read in conjunction with the whole contract is not enough to create an ambiguity sufficient to raise a triable issue o f fact"). Worig further argues that his performance Shareholder Agreement was excused by Moy's her of stock and Wong from selling shares prevented corporate b o o k s CAMH, -10- under the 2007 failure to relinquish and According records, to Wong, which Moy [* 12] controlled CAMH s bank accounts and wi-thdrew i t s remaining funds, and allegedly failed to reimburse Wong 50% of the costs of the business under paragraph 4 of the Shareholder Agreement, IJnder the doctri.ne of anticipatory breach, a wrongful. repudiation of the contract by one party before t h e time for performance entitles the nonrepudiating party to immediately claim damages for a total bx*each, and relieves the nonrepudiating party of its obligat-ion of future performance, American L i . s t Corp. v U . S , N e w s and W o r l d R e p o r t , 75 N Y 2 d 38, 44 (1989). Anticipatory breach requires a showing of a clear and unequivocal intention by defendant not to perform or to abandon the contract. HRL Union Ave. Corp. v New York C i t y Hous. A u t h . , 223 A D 2 d 486, 487 ( l s tDept 1996), Iv d e n 8 8 N Y 2 d 803 (1996). Here, the 2007 Shareholder Agreement reduced Moy s ownership interest from 50% to 253, but nothing contained in the agreement requi.red Moy to provide stock certificates to Wong. Agreement, ¶ 3. directorship [SI, Moy also resign[ed] Shareholder from any offices [and] from her position as bank account signatory, and from employment from the Business. Id. Moy I was entitled to receive 25% of the net proceeds of any sale by Wong, who was solely responsible for the Business. Id. Nothing contained in the Shareholder Agreement required Moy to turn over corporate books -11- [* 13] and records, and Worig fails to explain how he, as the individual solely responsible ¬ o r the Business, had no access to these items o r was ever denied access by Moy. Thus, none of the conduct alleged by Wong constituted a clear and unequivocal intention by Moy not to perform or abandon the Shareholder Agreement. Paragraph 4 of the Shareholder Agreement provided that Wong and Moy shall equally share any and a1.1 expenses, liabilities and taxes, i ncl-uding but not limited to worker compensation, disabilities and withholding taxes for the period of March 1, 2007 to August 31, 2007. Wong claims t h a t Moy never paid her share of these expenses, including costs and expenses associated with the renovation of CAMH. Wong A f f . , ¶ 61. Moy claims that Wong failed to pay his half of these expenses, which did not include any construction or renovation costs, Moy Aff., the parties ¶ 31. Notwithstanding disagreement over whether constructian costs were incl-uded in paragraph 4, Moy s purported breach of the Shareholder Agreement left Wong w i t h a choice--to treat the entire contract as broken and sue immediately f o r the breach or reject the proposed breach a n d continue to treat the contract as valid. of N . Y . Inter-Power v N i a q a r a Mohawk P o w e r C o r p . , 259 AD2d 932, 934 (3rd Dept 1999), Iv d e n 93 N Y 2 d 812 (1999). Wong was required to make an election, and he could not at the same time treat the contract as broken and as subsisting, One course of action excludes the -12- [* 14] other + Id., quoting Strasbourger v Leerburger, 233 NY 5 5 , 59 (1922)- Wong does not claim that he treated the entire contract as broken. To the contrary, Wong claims that CRMH moved into the Premises and remained there for at least 19 months. 69, 75. Wong A f f . , ¶¶ Ln addition, while Moy s purported breach would have .relieved Wong of the need to tender performance, Wong nonetheless [was] required to show that [he] was ready, willing and a b l e to perform [his] obligations under the contract. 259 AD2d at 934. N,Y., Inter-Power of Duri,ny his deposition, Wong admitted that he never intended to pay Leung, as he was required to do under paragraph 5 of the Shareholder Agreement. 9/14/10 Wong Tr., at 152-153. Thus, Wong s testimony establishes that he was not ready, willing, and able to perform his obligations under the Shareholder Agreerrien,t, thereby undermining his anticipatory breach argument. Wong also disputes Moy s claim for damages on the installment payments to Leung. According to Wong, Leung received payments from MGY and used those funds to pay non-party Spanish Broadcasting Company for a month-to-month lease of the radio frequency. Wong argues that, rather than pay Leung, he opted to enter into a contract with Spanish Broadcasting Company, directly. Wong Aff., IT 68. Wong claims that he merely elected to discontinue using Leung as an intermediary for payment to S p a n i s h Broadcasti.ng Company as a third party, because it was not sound business -13- [* 15] judgment. Wong Opp. Brief, at 23. face of the plain This argument flies in the language of paragraph 5 of the Shareholder Agreement, whereby Worig expressly agreed to he ful1.y responsible for the balance of .the payments to Leung, G r e e n f - i e l d v Philles Records, 98 NY2d 562, 569 (2002) ( a written agreement that is complete, clear and unambiguous on its face must be enforced accordi.ng Lo the plain meaning of its terms ). For t h e foregoing reasons, Wong fails to raise any issues of fact or rebut Moy s Therefore, Moy s motion for summary judgment prima facie showing. on her fourth counterclaim is granted. Florentine seeks summary judgment on its first counterclaim, and its separate compensation Paragraph 1 . for of petition CAMH s the in use 2007 the and Holdover occupancy Shareholder Proceeding, of Agreement the Being the authorized representative of the owner of the building in which the new station site for CAMH doing business as [CWCB] at 384 Broadway, 5 t h floor, New York, Moy shall herein or immediately soon after, enter into a l e a s e agreement with CAMH for the space which has been renovated by Wong and shall be used as a radio station thereat f o r a two year term at eight thousand dollar monthly as the flat rent ... . -14- Premi.ses. provided, pertinent part, as follows: for in [* 16] Moy claims that, on behalf of Florentine, she sent a proposed lease f o r CAMH's si~gnature, with a lease term of September 1, 2007 through August 31., 2009, a copy of which she submjts with h e r moving papers. Moy Aff., ¶ 74 and Ex. G. According to Moy, CAMH refused to sign the proposed lease or pay rent but nevertheless began to oc;cupy the Id., Premises. m 15. In March 2008, Florentine served CAMH with a 10-Day Notj.ce to Quit the Premises (id., Ex, H), but Moy claims that CAMH did not leave the Premises until August 2009 and failed to pay the agreed-upon rent pursuant to the 2007 Shareholder Agreement. Wong does not dispute that CAMH occupied the Premises, but rather, he disputes only the lease term for which Florentine seeks rent, a r g u i - n g that CAMH occupied the Premises beginning in November of 2007 (not September), and that CAMH vacated the Premises in June of 2009 (not August). Wong admits that CAMH paid $13,000 during its occupancy of the Premises. Wong's Statement of Material Facts, I 1 59. Response to Defendants' As i-t is undisputed that the parties never entered into a written, two-year lease, that CAMH used and occupied the Premises f o r at least 19 months and paid only $13,000 in rent, Florentine is entitled to summary judgment on liability in the Holdover Proceeding, with the amount of CAMH's use and occupancy of the Premises to be determined during trial. York Real Property Law § 220 ("[tlhe landlord may -1s- New recover a [* 17] reasonable compensation for the use and occupation of real property ) . Wong s Cross-Motion f o r S u m m a r y J u d g m e n t In hi.s cross-motion for part-iial summary judgment, Wong argues that he is not personal-ly 1.i.able for the obligations of CAMH under the Shareholder Agreement, including CAMI-I s obligation to enter into a lease agreement and its obligation to make payments under any s u c h lease. A claim for breach o f written guaranty requires a showing of \\anabsolute and unconditional guaranty, t.he underlying debt, and the guarantor s failure to perform under the guaranty. C i t y of N e w York v C1,arose C i n e m a C o r p . , 2 5 6 A D 2 d 69, 71 ( I s t Dept 1998). For. instance, in C i t i b a n k , N.A. v U r i S c h w a r t z 6; S o n s D i a m o n d s L t d . , 97 AD3d 444,447 (1 Dept 2012), the F i r s t Department upheld a personal guaranty in a loan document where it was offset by a separate h e a d i n g enti,tled, Personal Guarantee and Collateral Agreement, I and [ilmmediately above the signature line a statement appear [ed] that the signer [was] personally guaranteeing the loan, Here, paragraph 3 of the Shareholder Agreement provided that, [ulpon t-hesigning of this agreement, Moy shall not be responsible for any claims, taxes, and liabilities of CWCB or CAMH or of any of its affiliates, subsidiaries or branches 16 (referred to [sic] The [* 18] Busi.ness). Wong shall be f u l . l y responsible for the post 8/31/07 responsibilities of the Busiriess. As di.scussed above, paragraph 3 of the Shareholder Agreement pertained to Moy s resignation and reduced (1wnershi.p interest in CWBC, and, again stated .that Wong shall be solely responsible for the Business. Read as a whole, these provisions pertain to Wong s ,responsibility for carrying o u t the day-to-day functions of CAMH, as a r e s u l t of Moy s resignation and Wong s increased ownership interest. The word guaranty never appears in the Shareholder Agreement, and nothing contained in this agreement can be construed as a representation that Wang, in his personal capacity, would be responsible for the obligations of CAMH. Moreover, paragraph 1 of the Shareholder Agreement called f o r Moy to enter into a lease agreement with CAMH, not Wong. Although Moy and Florentine argue that if CAMH cannot make the [lease] payments, Mr. Wong is clearly obligated to do so (Moy and Florentine Reply Brief, at 16), they auth0rit.y in support of their argument. fail to cite any legal Nor do they allege any facts that would entitle them to pierce CAMH s c o r p o r a t e veil. the For foregoing reasons, Wong s cross-motion for partial summary judgment is granted to the extent of dismissing Moy and Florentine s first counterclaim, which s e e k s compensation for use and occupancy of the Premises against Wong and L&W. 17 [* 19] Worig also cross-moves for an order awarding him construction costs for renovation w o r k he performed at the Premises, a r g u i n g that Moy and Florentine received the benefit of Wong s construction work without paying for the constructions costs. d ~ y l l r r l e n t , Worig In support of his cites paragraph 4 of the Shareholder Agreement, which, as d i s c u s s e d above, pertained to Worig and Moy s agreement to equally share expenses of CAMH. As a preliminary matter, Wong s u n j u s t enrichment theory is not pleaded in the Complaint. While, generally, a party may not obtain summary judgment on an unpleaded cause of action, it may he awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice. Weinstock v H a n d l e r , 254 A D 2 d 165, 166 (1 Dept 1998) (internal citation omitted) , Wong s first cause of action alleges that Moy and Florentine breached the contracts between the parties, both written and oral. Complaint, ¶I 69. With respect to construction costs, this cause of action is based upon the parties alleged oral agreement preceding the Shareholder Agreement. Moy and Florentine concede that the parties entered into an oral. agreement but dispute that it included an agreement to share construction costs, thereby raising a factual. issue concerning the parties alleged oral agreement to 18 [* 20] share construct-ion costs. Moy A f f . , 24, 33, ¶¶ Moreover, while CAMH was incorporated on October 20, 2006, listing its address at the Premises, it is undisputed that CAMH never entered into a writ:t:en lease to o c c u p y the Premises, and, accordj.ng to Wong, CAMH di.d not occupy the Premises until November of 2007, after the construction work was completed. Thus, it is not clear to the Court whether the construction work at the Premises was performed pursuant to a n o r a l . agreement w i . t h , and for the benefit of, Florentine, as owner of the Premises, or for the benefit of CAMH pursuant to an oral agreement that would trigger the shared expenses outlined in paragraph 4 of the Shareholder Agreement. addition, to the extent that Wong's In unjust enrichment claim is based upon breach of the alleged o r a l agreement, as alleged in 'the Complaint, it is duplicative. H o e f f n e r v O r r i c k , Herrington & Sutcliffe LLP, 61 A D 3 d 614, 615 ( l S Dept 2009). For these reasons, t at this juncture in the litigation, Wong fails to make a prima facie showing on his unpleaded claim for unjust enrichment. Accordingly, it is hereby ORDERED that the motion for summary judgment is granted to the extent o f granting partial summary judgment in favor of defendants Elma Moy and Florent-ine Music & Tutorial, Inc. as follows: 19 [* 21] 1. Plaintiff Benny Wong s second cause of action for fraud is dismissed with prejudice and without costs or disbursements; 2. E l m a Moy is granted judgment against plai.ntiff Benny Wony on her fourth counterclaim in the amount of $300,000, together with interest 17, 2011 at from March the statutory rate, to be calculated by the Clerk, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs, and t h e Clerk is directed to enter judgment accordingly; 3. Respondent Chinese American Media Holding Inc. a/k/a Chung Wah Commercial B r o a d c a s t i n g Company Inc. is f o u n d liable to petitioner Florentine Music its petition for respondent s use & Tutorial, Inc. on and occupancy of petitioner s premises located at 384 Broadway in New York City, and the issue of the amount of damages shall be determined at the trial herein; and 4. The motion is otherwise denied. It is further, ORDERED that the cross-motion by plaintiff Benny Wong for partial summary judgment is granted to the extent of dismissing the 20 [* 22] f i r s t c o u n t e r c l a i m o f E l m a Moy a n d F l o r e n t i n e M u s i c & Tutorial, Inc., and is o t h e r w i s e d e n i e d ; and i t i s further ORDERED t h a t c o u n s e l a r e d i r e c t e d t o a p p e a r f o r a c o n f e r e n c e in IA Part 3 9 , G O C e n t r e S t r e e t , R o o m 208 on November 14, 2 0 1 2 a t 1 0 : O O a.m. T h i s c o n s t i t u t e s t h e d e c i s i o n and o r d e r of t h i s C o u r t , Dated: October s-, 2012 n 21

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