Imrie v Ratto

[*1] Imrie v Ratto 2019 NY Slip Op 50845(U) Decided on May 10, 2019 Supreme Court, Warren County Auffredou, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2019
Supreme Court, Warren County

Daniel F. Imrie, II, Plaintiff,

against

Andrew R. Ratto, EDWARD AND THOMAS O'CONNOR, INC., MIDLAND FUNDING, LLC and ERIE INSURANCE COMPANY, Defendants. Action 1 DANIEL F. IMRIE, II, individually and as assignee of ANDREW RATTO and RATTO RESTORATIONS, INC., Plaintiff, JEFFREY D. HOWARD, ADIRONDACK REGIONAL INSURANCE AGENCY, INC. and ERIE INSURANCE COMPANY, Defendants. Action 2



DANIEL F. IMRIE, II, individually and as assignee of ANDREW RATTO and RATTO RESTORATIONS, INC., Plaintiff,

against

JEFFREY D. HOWARD, ADIRONDACK REGIONAL INSURANCE AGENCY, INC. and ERIE INSURANCE COMPANY, Defendants. Index No. 61841 RJI No. 56-1-2016-0052 Action 2



59068



The Clements Firm, Glens Falls (Thomas G. Clements of counsel), for plaintiff in both actions.

Ruup, Baase, Pfalzgraf, Cunningham & Coppolla, LLC, Buffalo (Marco Cercone and Robert M. Zielinski of counsel), for Erie Insurance Company, defendant in both actions.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Lia B. Mitchell of counsel), for Jeffrey D. Howard and Adirondack Regional Insurance Agency, Inc., defendants in Action 2.
Martin D. Auffredou, J.

On or about June 1, 2010, plaintiff Daniel F. Imrie II ("plaintiff" or "Imrie") sold his car repair business and accompanying garage located at 894 Ridge Road, Queensbury, New York ("the premises") to defendant Andrew J. Ratto ("Ratto"). As part of the transaction, Ratto executed and delivered two promissory notes to Imrie and executed and delivered two mortgages encumbering the property. On July 17, 2013, plaintiff commenced a foreclosure action against Ratto ("Action 1"). On July 31, 2013, the premises were destroyed by fire. Imrie learned that Ratto had not insured the premises for fire loss. At the time of the fire, the premises were apparently insured for fire loss by Erie Insurance Company, Inc. ("Erie") under Ultraflex Policy No. Q47 6850056 ("the insurance policy"), which had been issued to Ratto Restorations, Inc. d/b/a Ridge Road Car Care ("Ratto Restorations"). Imrie was not named as an additional insured or loss payee on the insurance policy. Following the fire, plaintiff submitted a claim to Erie for the proceeds of the insurance policy; Erie denied the claim.

Plaintiff subsequently filed a supplemental summons and complaint adding Edward and Thomas O'Connor, Inc., Midland Funding, LLC and Erie as defendants in Action 1.[FN1] In December, 2017, plaintiff filed a second amended complaint in Action 1, asserting two causes of action against Ratto for breach of contract and a cause of action against Erie for a declaratory judgment. In the cause of action against Erie, plaintiff seeks reformation of the insurance policy to name plaintiff as loss payee and asserts that he has an equitable lien on the proceeds of the insurance policy.

In July, 2015, Ratto and Ratto Restorations executed an Assignment of Insurance Policy in which they assigned to plaintiff the casualty insurance policy written by Erie. Also in July, 2015, plaintiff, individually and as assignee of Ratto and Ratto Restorations, commenced a separate action against Erie, Adirondack Regional Insurance Agency, Inc. ("Adirondack") and its principal, Jeffrey D. Howard ("Howard") ("Action 2").[FN2] On or about November 6, 2015, plaintiff filed an amended complaint in Action 2. In the amended complaint, plaintiff asserts causes of action against Erie for breach of the insurance policy, as assignee of Ratto and Ratto Restorations, and as an alleged intended third-party beneficiary of the contract. Plaintiff further asserts a cause of action against Howard and Adirondack for breach of the insurance policy, as an alleged intended third-party beneficiary. Plaintiff also asserts a cause of action, individually, [*2]as assignee of Ratto and Ratto Restorations, and as an alleged intended third-party beneficiary of the contract, for reformation of the policy, as well as a cause of action against all defendants, seeking to impose an equitable lien on the proceeds of the insurance policy. Plaintiff further asserts causes of action, individually and as assignee of Ratto and Ratto Restorations, against all defendants, for negligence and declaratory judgment, as well as causes of action against Erie for promissory estoppel and unjust enrichment.

The facts and procedural history of both actions are set forth in further detail in the Decisions and Orders of this Court (Krogmann, J.), dated May 4, 2015 and July 13, 2015, the Decision and Order of this Court dated February 3, 2016, and the Memorandum and Order of the Appellate Division, Third Department, dated December 29, 2016 (Imrie v Ratto, 145 AD3d 1358, 1360 [3d Dept 2016]), all of which are incorporated herein by reference, as well as in the various moving papers.

Plaintiff moves for summary judgment against Ratto (in Action 1), in the amount of $226,934.72, together with interest at 7% per annum from July 31, 2013, plus reasonable attorneys' fees.[FN3] Plaintiff also moves for partial summary judgment against Erie, and Howard and Adirondack, seeking to have the insurance policy at issue reformed to name him as mortgagee and for judgment for the money that should have been paid to him (pursuant to the insurance policy) as mortgagee and for consequential damages. Plaintiff seeks judgment against Erie, and Howard and Adirondack, in the amount of $241,000, with interest at 7% per annum from July 31, 2013. Plaintiff also seeks judgment against Howard and Adirondack for the reasonable costs of plaintiff's litigation expenses in an amount to be determined by the Court in future proceedings, together with costs and disbursements.

Erie moves for summary judgment in both actions, dismissing plaintiff's second amended complaint. Howard and Adirondack also move for summary judgment, dismissing the complaint and reforming the insurance contract to identify Andrew Ratto as the named insured and plaintiff as the mortgagee, and dismissing Erie's cross-claims.

Oral argument was held on November 19, 2018.

Plaintiff argues that, as a matter of law, there was a mutual mistake between Ratto Restorations, Inc. and Erie (and/or its agent) in not including plaintiff as mortgagee on the casualty insurance policy and the insurance policy should be reformed. In addition, plaintiff contends that there is no known defense Erie would have to his claim as mortgagee and, therefore, seeks a money judgment in his favor against Erie.

In its motion in Action 1, Erie argues that plaintiff is not an insured under the insurance policy and lacks standing to sue Erie for coverage. Erie argues that plaintiff has no relationship with the named insured — Ratto Restorations, Inc. — and that Ratto Restorations and Erie are not parties to the mortgage between plaintiff and Andrew Ratto. Erie argues that plaintiff has failed to demonstrate any right to benefit from the insurance contract. Erie further claims that since plaintiff has not alleged any relationship with the insured, Ratto Restorations, or Erie, that gives him the right to the policy proceeds, his claim for equitable lien fails as a matter of law. Erie contends that Ratto Restorations is not bound to pay any debt to plaintiff and is not liable for Andrew Ratto's obligations to plaintiff. Erie further contends that plaintiff has not alleged any [*3]cognizable right to recover funds payable to Ratto Restorations. Erie also argues that there is no material issue of fact relating to fraud or mistake warranting reformation of the insurance contract. Erie further contends that even if plaintiff had been named on the insurance policy as mortgagee, there would be no coverage for his claim as plaintiff has breached the insurance contract by failing to notify Erie of a change in occupancy or ownership or an increase in risk. Erie claims the hazard or risk increased when Ratto stopped paying property taxes and began making mortgage payments late and plaintiff knew of the same but did not inform Erie.

In its motion in Action 2, Erie argues that plaintiff cannot recover as the purported assignee of Ratto and Ratto Restorations. Erie contends that the same defenses that exist against the named insured (Ratto Restorations) now exist against plaintiff, since the assignee of a policy can have no greater rights than the assignor. Erie has denied the named insured's claim based upon lack of cooperation, which it asserts is a material breach of the insurance contract and a defense to suit on the policy. Erie further argues that since the claim had been denied prior to the assignment, Ratto and Ratto Restorations had no further rights in the policy and therefore, could not assign any rights and the assignment is null on its face. Erie also argues, as it did in its motion in Action 1, that plaintiff is not an insured under the insurance policy and lacks standing to sue for coverage, that plaintiff is not entitled to an equitable lien on the proceeds of the insurance policy, that the policy should not be reformed and that even if plaintiff had been named on the policy as mortgagee, he breached the contract by failing to advise of changes in occupancy, ownership and risk. Erie further argues that plaintiff was not an intended third-party beneficiary of the insurance contract but, rather, an incidental beneficiary who does not have the right to bring suit. Erie also contends that it did not owe any duty to plaintiff and that plaintiff has not identified a legal duty Erie owes to plaintiff independent of the contract plaintiff claims Erie breached; that is, the duty alleged in tort is the same duty alleged in the breach of contract claim. Erie argues further that plaintiff cannot recover on a cause of action for unjust enrichment, reiterating that there was no relationship between Erie and plaintiff. Erie claims that plaintiff's allegations regarding unjust enrichment are merely conclusory and fail to support the claim. Finally, Erie claims that plaintiff has failed to identify a clear and unambiguous promise upon which plaintiff claims it relied and such failure is fatal to plaintiff's promissory estoppel claim. Further, Erie argues that the existence of a written contract precludes recovery in promissory estoppel which arises from the same subject matter; that is, a promissory estoppel claim should be dismissed if it is duplicative of a breach of contract claim. Erie argues that there is no evidence that it made a clear and unambiguous promise to plaintiff about anything and plaintiff has failed to identify any promise made by Erie, much less a clear and unambiguous promise. In addition, Erie argues this claim is subsumed within the breach of contract claim and is, therefore, duplicative and should be dismissed.

Howard and Adirondack argue that the insurance policy should be reformed to include plaintiff as mortgagee and to list Ratto, not Ratto Restorations, Inc. as the named insured based upon what they assert was the mutual intent of the parties. These defendants also argue, generally, that plaintiff's causes of action against Howard and Adirondack should be dismissed as a matter of law as plaintiff was not an intended beneficiary of any contract between these defendants and Ratto Restorations, there is no basis to award plaintiff an equitable lien on the proceeds of the policy as against these defendants as they did not issue the insurance policy and would not receive the proceeds of the same, these defendants did not owe any duty to plaintiff, individually, and with respect to plaintiff's claim as assignee of Ratto and Ratto Restorations, [*4]any alleged negligence was not the cause of any damages, and these defendants do not owe indemnification because they were not negligent.

"It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475-476 [2013]; CPLR 3212 [b]). Once the movant makes the proper showing, 'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action' (Alvarez, 68 NY2d at 324). The 'facts must be viewed in the light most favorable to the non-moving party' (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks omitted]). However, bald, conclusory assertions or speculation and '[a] shadowy semblance of an issue' are insufficient to defeat summary judgment (S.J. Capelin Assocs., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]), as are merely conclusory claims (Putrino v Buffalo Athletic Club, 82 NY2d 779, 781 [1993])." (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016].)

As indicated above, generally, plaintiff asserts causes of action for breach of the insurance policy, for reformation of the insurance policy, to impose an equitable lien on the proceeds of the insurance policy, for negligence, declaratory judgment and promissory estoppel, and a cause of action against Erie for unjust enrichment.

Breach of the Insurance Policy

Plaintiff is not entitled to recover from any of the defendants on his claim for breach of the insurance policy.

Initially, plaintiff cannot recover against Erie on the basis of the purported assignment by Ratto and Ratto Restorations. Plaintiff has not demonstrated it has any legal right to recover funds payable to Ratto Restorations, pursuant to the insurance policy. Prior to the assignment, Erie denied the named insured's claim based upon lack of cooperation, which it asserts is a material breach of the insurance contract and a defense to suit on the policy (see Weissberg v Royal Ins. Co., 240 AD2d 733, 734 [2d Dept 1997] [insureds' willful failure to provide material and relevant documents, or to submit to examination under oath, is material breach of policy which bars recovery under policy]). Therefore, Ratto Restorations did not have any valid claim to assign to plaintiff. As assignee, plaintiff "is not entitled to stand in a better position than that of [his] assignor" (Windsearch, Inc. v Delafrange, 90 AD3d 1223, 1224 [3d Dept 2011], quoting Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 416 [2010]) and could only acquire those rights that Ratto Restorations possessed (see Kittner v E. Mut. Ins. Co., 80 AD3d 843, 845 [3d Dept 2011]). Moreover, the same defenses that exist against the named insured (Ratto Restorations) now exist against plaintiff (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652, 653 [2d Dept 2007]). Therefore, even assuming, arguendo, that Ratto Restorations still had rights in the policy at the time of the assignment, that same denial applies to plaintiff's claim under the policy. Erie demonstrated that plaintiff is not entitled to the proceeds of the subject insurance policy on the basis of the assignment and defendant Erie is not liable to plaintiff for any alleged breach of the policy. Plaintiff failed to raise a triable issue of fact regarding this issue.

Plaintiff also cannot recover against any of the defendants upon the ground that he was an intended third-party beneficiary.

"[A] third party may sue as a beneficiary on a contract made for [its] benefit. However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to enforce the particular contracts. We have previously sanctioned a third party's right to enforce a contract in two situations: when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was an intent to permit enforcement by the third party." (Dormitory Auth. of the State of NY v Samson Constr. Co., 30 NY3d 704, 710 [2018] [internal quotation marks and citations omitted].)

"Thus, it is well established that a third party cannot be deemed an intended beneficiary of a contract unless 'the parties' intent to benefit the third party ... [is] apparent from the face of the contract' (Commr. of Dept. of Social Services of City of New York v New York-Presbyt. Hosp., 164 AD3d 93, 98 [1st Dept 2018], lv to appeal denied, 2019 NY Slip Op 66811 [Apr. 2, 2019], quoting LaSalle Natl. Bank v Ernst & Young, LLP, 285 AD2d 101, 108 [1st Dept 2001] [internal citations omitted]; accord Zelber v Lewoc, 6 AD3d 1043, 1045 [3d Dept 2004]).

In its motion, Erie demonstrated that the insurance contract was not entered into with the intent to benefit plaintiff or the intent to permit plaintiff to enforce the policy, and plaintiff is not the only one who could recover for breach of the policy. Similarly, Howard and Adirondack demonstrated that plaintiff is not the only one who could recover for breach of any contract between those defendants and Ratto Restorations and that any contract does not evidence an intent to permit enforcement by plaintiff. In opposition, plaintiff failed to raise a triable issue of fact in this regard. Therefore, all defendants are entitled to summary judgment on plaintiff's causes of action for breach of the insurance policy as an alleged intended third-party beneficiary.

Reformation

As the Third Department stated in deciding earlier appeals in this case, " a party seeking reformation of a contract must establish, by clear and convincing evidence, either that the writing at issue was executed under mutual mistake or that there was a fraudulently induced unilateral mistake" (Imrie, 145 AD3d at 1360 [internal citations omitted]; see also George Backer Mgt. Corp. v Acme Quilting Co., Inc., 46 NY2d 211, 219 [1978]; Herron v Essex Ins. Co., 34 AD3d 913, 914 [3d Dept 2006], lv dismissed 8 NY3d 856 [2007]). "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties" (George Backer Mgt. Corp., 46 NY2d at 219 [internal citations omitted]).

In this action, plaintiff and defendants Howard and Adirondack seek reformation based upon alleged mutual mistake. Neither plaintiff nor Howard and Adirondack have established, by clear and convincing evidence, that plaintiff was not included on the subject insurance policy as mortgagee due to a mutual mistake, such that the insurance policy should be reformed, nor do any material issues of fact exist with respect to this issue. In the Court's view, it was not a simple inadvertent mistake to list Ratto Restorations as the insured on the fire insurance policy, rather than Ratto, or to fail to list plaintiff as mortgagee. The branches of plaintiff's motion and the motion of defendants Howard and Adirondack seeking reformation of the insurance policy must be denied and the branch of Erie's motion seeking summary judgment dismissing this cause of action must be granted.

Equitable Lien

Where an agreement contains a covenant or promise to insure premises against fire loss [*5]for the benefit of one holding a security interest, such as a mortgagee, the holder of that interest has an equitable lien in any proceeds to the extent of its interest; in the case of a mortgagee, that interest is the remaining unpaid portion of the purchase price (see Rosario-Paolo, Inc. v C & M Pizza Rest., Inc., 84 NY2d 379, 383 [1994]).

Erie established its entitlement to judgment by demonstrating that the mortgagor was Andrew Ratto, who was not the named insured on the subject insurance policy. The proceeds of the subject insurance policy were payable to Ratto Restorations, which was not obligated to pay any debt to plaintiff with respect to the property. Plaintiff cannot establish any right to recover insurance proceeds payable to Ratto Restorations and is not entitled to an equitable lien on the same. In opposition to the motion, plaintiff failed to raise a triable issue of fact in this regard.

Howard and Adirondack also demonstrated their entitlement to judgment dismissing this cause of action. Howard and Adirondack did not issue the policy and could not make any payments under the policy. Plaintiff failed to raise a triable issue of fact regarding this issue in opposition and at oral argument, plaintiff's counsel consented to dismissal of this cause of action as to defendants Howard and Adirondack.

Negligence

"'It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated' (Clark—Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987] ). Put another way, where the damages alleged 'were clearly within the contemplation of the written agreement ... [m]erely charging a breach of a "duty of due care," employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim (70 NY2d at 390).' " (Dormitory Auth., 30 NY3d at 711.)

In its motion, Erie demonstrated that it did not owe any legal duty to plaintiff, individually or as assignee of Ratto and Ratto Restorations, independent of the insurance contract which plaintiff claims Erie breached. The duty which plaintiff claims Erie owes to him arises from the same duty which plaintiff claims gives rise to its claim for breach of contract. Plaintiff failed to raise a triable issue of fact with respect to this issue in his opposition.

"As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage. Hence, in the ordinary broker-client setting, the client may prevail in a negligence action only where it can establish that it made a particular request to the broker and the requested coverage was not procured" (Voss v Netherlands Ins. Co., 22 NY3d 728, 734 [2014] [internal quotation marks and citations omitted]).

However, a claim against an insurance broker should be dismissed where the broker's alleged negligence in procuring coverage is not the proximate cause of the plaintiff's inability to recover on the policy (see Weissberg v Royal Ins. Co., 240 AD2d 733, 734 [2d Dept 1997] [in light of holding that plaintiffs precluded from recovering insurance proceeds due to their breach of cooperation clause in policy, summary judgment awarded to defendant broker since alleged negligence in procuring subject policy was not proximate cause of plaintiffs' inability to recover on policy]).

An insurance agent/broker's duty extends only to it customer (see Wainwright v Charlew Constr. Co., Inc., 302 AD2d 784, 786 [3d Dept 2003] [since there was no privity between insurance agent and general contractor, agent owed no duty to general contractor for the breach, [*6]if any, of the obligation to notify insurance carrier of action listing general contractor as an additional insured]; St. George v W.J. Barney Corp., 270 AD2d 171, 172 [1st Dept 2000] [while insurance broker may have arguably breached duty to client, could not be held liable to additional insured, to whom it owed no duty]).

Howard and Adirondack demonstrated their entitlement to judgment on the negligence cause of action asserted against them. Initially, these defendants did not owe any duty to plaintiff, who was not their customer. Absent a duty, Howard and Adirondack cannot be held liable in negligence. Moreover, their alleged negligence in not adding plaintiff as loss payee on the policy as mortgagee was not the proximate cause of the plaintiff's inability to recover on the policy; rather the failure of the named insured, Ratto Restorations, to cooperate with Erie in its investigation, was. In his opposition to the motion, plaintiff failed to demonstrate that a material issue of fact exists with respect to this cause of action as against Howard and Adirondack.

Declaratory Judgment

Plaintiff, individually and as assignee of Ratto and Ratto Restorations, seeks a declaration that because Howard and/or Adirondack and/or Erie did not procure insurance for Ratto and plaintiff, Howard and/or Adirondack and/or Erie are required to indemnify plaintiff for his loss by reason of the fire and his reasonable attorneys' fees and expenses.

"The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party." (Hackert v Emmanuel Cong. United Church of Christ, 130 AD3d 1292, 1295 [3d Dept 2015] [internal quotation marks and citations omitted].) To establish his claim for common-law indemnification, plaintiff is required to prove not only that defendants were negligent, but also that plaintiff was not negligent (see, e.g., id.; McCarthy v Turner Const., Inc., 17 NY3d 369, 378 [2011]).

Although Erie does not specifically address the request for a declaratory judgment, in light of the Court's decision on the remainder of Erie's motion, the Court finds that this cause of action should be dismissed as to Erie as no material issues of fact exist.

In their motion, defendants Howard and Adirondack demonstrated that they are not liable to plaintiff based upon alleged failure to procure insurance and that plaintiff is not free from negligence and, therefore, they are not liable to indemnify plaintiff for any losses he claims to have sustained. In opposition, plaintiff failed to raise a triable issue of fact in this regard.

Promissory Estoppel

"The doctrine of promissory estoppel may be invoked where it is 'shown that the defendant made a clear and unambiguous promise upon which the plaintiff reasonably relied to his or her detriment' (Clifford R. Gray, Inc. v LeChase Constr. Servs., 51 AD3d 1169, 1170 [2008] [internal quotation marks and citation omitted] )" (Kaloyeros v Fort Schuyler Mgt. Corp., 157 AD3d 1152, 1154-1155 [3d Dept 2018]).

Erie has demonstrated that it did not make any clear and unambiguous promise upon which plaintiff reasonably relied to his detriment. Plaintiff failed to even identify any such alleged promise or to raise an issue of fact in opposition. Moreover, the Court agrees with Erie that this claim is subsumed within plaintiff's breach of contract claim and is duplicative and should be dismissed on that ground (see Grossman v New York Life Ins. Co., 90 AD3d 990, 992 [2d Dept 2011]; Celle v Barclays Bank P.L.C., 48 AD3d 301, 303 [1st Dept 2008]); see also Clark-Fitzpatrick, Inc. v Long Is. R. Co., 70 NY2d 382, 388 [1987] ["the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery [*7]in quasi contract for events arising out of the same subject matter"]).

Unjust Enrichment

"'[T]he theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties' (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012] [internal quotation marks and citations omitted]; see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]; Clark-Fitzpatrick, Inc., 70 NY2d at 388 )." (Catlyn & Derzee, Inc. v Amedore Land Developers, LLC, 166 AD3d 1137, 1139-40 [3d Dept 2018]).

"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 recovered. A plaintiff must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered." (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation marks and citations omitted].)

Erie demonstrated that it has not been unjustly enriched by refusing to pay the proceeds of the insurance policy to plaintiff. There is no relationship between Erie and plaintiff and no obligation needs to be imposed in order to prevent injustice. Moreover, Erie has demonstrated that it has not been enriched, at plaintiff's expense, and it is not against equity and good conscience to permit Erie to retain the proceeds of the insurance policy. In his opposition, plaintiff failed to raise a triable issue of fact.

Based upon the foregoing, it is hereby

ORDERED that plaintiff's motion is denied; and it is further

ORDERED that Erie's motion is granted in its entirety; and it is further

ORDERED that defendants Howard and Adirondack's motion is granted to the extent that it seeks summary judgment and is otherwise denied; and it is further

ORDERED that plaintiff's second amended complaint in Action1 and amended complaint in Action 2, and any and all cross-claims, are dismissed.

The remaining arguments raised by the parties have been examined and found to be unavailing. Any requested relief not specifically addressed herein has nonetheless been considered and is hereby denied.

The within constitutes the Decision and Order of this Court.

Signed this 10th day of May, 2019, at Lake George, New York.

ENTER:

HON. MARTIN D. AUFFREDOU

JUSTICE OF THE SUPREME COURT

The Court is filing the original Decision and Order, together with the original papers listed below, in the Warren County Clerk's Office. The Court is also providing all counsel and Andrew Ratto with a copy of the Decision and Order; such delivery does not constitute service with notice of entry.

Distribution:

Thomas G. Clements, Esq.

Marco Cercone, Esq.

Lia B. Mitchell, Esq.

Andrew Ratto, Pro Se

List of papers considered:

the affidavit of Daniel F. Imrie, II, sworn to September 21, 2018, the affidavit of Thomas G. Clements, Esq., sworn to September 21, 2018, with exhibits and plaintiff's memorandum of law, in support of plaintiff's motion;

the affidavit of Marco Cercone, Esq., sworn to September 21, 2018, with exhibits, the affidavit of Christopher Snyder, Esq., sworn to September 21, 2018, with exhibits, in support of defendant Erie's motion in Action 1;

the affidavit of Marco Cercone, Esq., sworn to September 21, 2018, with exhibits, the affidavit of Christopher Snyder, Esq., sworn to September 21, 2018, with exhibits, and defendant Erie's memorandum of law, dated September 21, 2018, in support of defendant Erie's motion in Action 2;

the affirmation/memorandum of law of Lia B. Mitchell, Esq., dated September 21, 2018, with exhibits, in support of defendants Howard and Adirondack's motion;

the affidavit of Thomas G. Clements, Esq., sworn to October 19, 2018, with exhibits, and plaintiff's memorandum of law, in opposition to defendants' motions for summary judgment;

the affirmation of Lia B. Mitchell, Esq., dated October 16, 2018, with exhibit, in opposition to plaintiff's motion and defendant Erie's motion;

the affidavit of Marco Cercone, Esq., sworn to October 19, 2018, and defendant Erie's memorandum of law, dated October 19, 2018, in opposition to plaintiff's motion;

the affidavit of Marco Cercone, Esq., sworn to October 19, 2018 and defendant Erie's memorandum of law, dated October 19, 2018, in opposition to defendants Howard and Adirondack's motion;

the reply affirmation/memorandum of law of Lia B. Mitchell, Esq., dated October 25, 2018, in further support of Howard's and Adirondack's motion;

the affidavits (2) of Robert Zielinski, Esq., sworn to October 25, 2018, in further support of Erie's motions;

the reply affidavit of Thomas G. Clements, Esq., sworn to October 26, 2018, with exhibit, and [*8]plaintiff's reply memorandum of law, in further support of plaintiff's motion;

the reply affirmation and memorandum of law of Lia B. Mitchell, Esq., dated November 1, 2018, in further support of Howard's and Adirondack's motion;

correspondence from Howard and Adirondack's counsel, Lia B. Mitchell, Esq., dated November 27, 2018;

correspondence from Erie's counsel, Marco Cercone, Esq., dated December 5, 2018; and

correspondence from plaintiff's counsel, Thomas G. Clements, Esq., dated November 28, 2018, December 5, 2018 and December 27, 2018. Footnotes

Footnote 1:Plaintiff discontinued Action 1 as to defendants Edward and Thomas O'Connor, Inc. and Midland Funding, LLC; however, the caption was not amended to remove these defendants.

Footnote 2: Action 1 and Action 2 were joined for trial by Decision and Order dated February 3, 2016.

Footnote 3:Ratto did not oppose the motion and the Court granted the branch of plaintiff's motion which seeks summary judgment against Ratto, via a bench decision. on November 19, 2018. A judgment against Ratto was signed on February 6, 2019; an amended judgment was signed on February 20, 2019.