Mehmedovic v. Xhrretovic

189 A.D.3d 1573

135 N.Y.S.3d 286 (Mem)

Samih MEHMEDOVIC, appellant,

v.Samir XHRRETOVIC, etc., et al., respondents, et al., defendant.

2019–00686

Index No. 1580/12

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 13, 2020

December 30, 2020

Kevin T. Conway, Spring Valley, NY, for appellant.

Adam K. Kurland, New City, NY, for respondents.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Rockland County (Rolf M. Thorsen, J.), dated November 26, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Samir Xhrretovic and Xhavdet Xhurretovic which was for summary judgment dismissing the cause of action alleging unjust enrichment insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

As is relevant to this appeal, in 2012, the plaintiff commenced this action against, among others, the defendants Samir Xhrretovic and Xhavdet Xhurretovic (hereinafter together the defendants), to recover damages for breach of contract, fraud, conversion, and unjust enrichment in connection with a real estate transaction. The defendants moved, inter alia, for summary judgment dismissing the cause of action alleging unjust enrichment insofar as asserted against them. In an order dated November 26, 2018, the Supreme Court, among other things, granted that branch of the defendants' motion. The plaintiff appeals.

"To prevail on a claim of unjust enrichment, a party 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" ( Old Republic Natl. Tit. Ins. Co. v. Luft, 52 A.D.3d 491, 491–492, 859 N.Y.S.2d 261 ; see Nissan Motor Acceptance Corp. v. Scialpi, 94 A.D.3d 1067, 1068, 944 N.Y.S.2d 160 ). Here, the defendants made a prima facie showing that they were not unjustly enriched at the plaintiff's expense (see Nissan Motor Acceptance Corp. v. Scialpi, 94 A.D.3d at 1068, 944 N.Y.S.2d 160 ; Old Republic Natl. Tit. Ins. Co. v. Luft, 52 A.D.3d at 492, 859 N.Y.S.2d 261 ). The plaintiff's submissions in opposition, including the affidavits of two nonparties setting forth only bare statements of alleged wrongdoing by the defendants, failed to raise a triable issue...