5c-

SUPREME COURT-STATE OF NEW YORKSHORT FORM ORDERPresent:

HON. TIMOTHY S. DRISCOLLJustice Supreme Court

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SAEID E. JALAYER, JINOUS ATAI,NEGIN JALA YER and SAAM JALA YER

TRIAL/IAS PART: 25NASSAU COUNTY

Plaintiffs, Inde)( No: 014729-Motion Seq. Nos: 2, 3 & 4Submission Date: 9/30/09-against-

JOSEPHINE STIGLIANO, and JOSEPHINESTIGLIANO as EXECUTRIX OF THE ESTATEOF ANTHONY G. STIGLIANO; THE EST A TEOF ANTHONY G. STIGLIANO; ANTHONY GERARDSTIGLIANO, JR. ; JOAN MAE STIGLIANO;PHYLIS ANN STIGLIANO; DIANE MARIESTIGLIANO; LAUREN JOAN AHERN;LONG ISLAND LIGHTING COMPANY, AlALILCO; LONG ISLAND LIGHTING COMPAN,AlA LILCO, D/B/A LONG ISLAND POWERAUTHORITY, AIA LIPA and NORTH SHORECESSPOOL CLEANING COMPANY, INC.,

Defendants.

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Papers Read on these Motions:

Notice of Motion, Attorney s Affirmation and E)(hibits..............Memorandum of Law in Support...................................................Notice of Motion, Affidavit in Support and E)(hibits..................Memorandum of Law in Support...................................................Notice of Motion, Attorney Affirmation and E)(hibits................Affirma ti 0 n in Op p os i ti 0 D.................................... .......... ..........

.......

Rep Iy Affirma ti 0 n....

........ ........................................ ...................... ..

Reply Affidavit in Further Support..........................................Reply Memorandum of Law in Further Support........................

This matter is before the cour on the motions to dismiss 1) by Defendants Josephine

Stigliano and Josephine Stigliano as Executrix of the Estate of Anthony G. Stigliano , the Estate

of Anthony G. Stigliano , Anthony Gerard Stigliano Jr. , Joan Marie Stigliano, Phylls

Stigliano, Diane Marie Stigliano ("Defendants Stigliano ) and Lauren Joan Ahern filed on

May 22 , 2009, 2) by Defendants Long Island Lighting Company d//a LIP A, incorrectly sued as

Long Island Lighting Company aIa LILCO and Long Island Lighting Company aIa LILCO

d//a Long Island Power Authority ala LIP A ("Defendants LIP A"), filed on July 2009 and

3) by Defendant North Shore Cesspool Cleaning Company, Inc. , fied on July 17, 2009 , all of

which were submitted on September 30 2009.

The Cour conducted oral argument on the motions, at which time Plaintiffs conceded

that counts one and two of the Amended Verified Complaint ("Complaint"), which allege

violations of the Comprehensive Environmental Response, Compensation and Liability Act, 42

C. 99601 et seq. CERCLA") should be dismissed. The Cour thus dismisses those counts.

Furhermore, for the reasons set forth below, the Cour grants the Defendants ' motions and

dismisses the remaining counts in the Complaint against Josephine Stigliano and Josephine

Stigliano as Executrix of the Estate of Anthony G. Stigliano , the Estate of Anthony G. Stigliano

Anthony Gerard Stigliano Jr. , Joan Marie Stigliano , Phylls An Stigliano, Diane Mare

Stigliano ("Defendants Stigliano ), Lauren Joan Ahern, Long Island Lighting Company aIaLILCO; Long Island Lighting Company aIa LILCO d//a Long Island Power Authority aIaLIPA ("Defendants LIP A") and North Shore Cesspool Cleanng Company, Inc.

BACKGROUND

A. Relief Sought

The Defendants Stigliano and Lauren Joan Ahern move, pursuant to CPLR 99 3211(a)(I)

and (7) and CPLR 93016 for an Order dismissing the Complaint as interposed against them.

Defendants LIP A move, pursuant to CPLR 9 3 211 (a), for an Order dismissing the

Complaint as interposed against them.

Defendant North Shore Cesspool Cleaning Company, Inc. moves , pursuant to CPLR

9 3211(a), for an Order dismissing the Complaint as interposed against it.

Plaintiffs Saeid E. Jalayer, Jinous Atai, Negin Jalayer and Saa Jalayer oppose

Defendants ' motions , except that Plaintiffs concede that the counts alleging violations of

CERCLA should be dismissed.

1 Plaintiffs have submitted a single Afftrmation in Opposition to the three motions.

B. The Paries ' History

In November of2002 , the Plaintiff-purchasers Saeid E. Jalayer and Jinous Atai ("Atai"

acquired for the sum of $1 milion, certain real propert in Sea Cliff, New York, from Defendant

Josephine Stigliano , as Executrix of the Estate of Anthony G. Stigliano (A. Cmplt. 19-20).

The subject two-acre parcel had been owned since 1954 by the decedent Anthony G. Stigliano

who died in 1994 (A. Cmplt. 17- 18). According to the Plaintiffs, Defendant Anthony

Stigliano, Jr. acted as broker in connection with the transaction and, in fact, was paid a

$100 000.00 commission (A. Cmplt. 24; Fuller (Opp) Aff. 8). The Cour notes, however

that the form Residential Contract of Sale ("Contract") that the paries executed contains a

provision explicitly reciting that no broker had been utilzed (Contract 27). Paragraph 27 of

the Contract provides, in pertinent par, that "Seller and Purchaser each represents and warants

to other that it has not dealt with any broker in connection with this sale other than NONE (the

last word tyed in capital letters ).

Both the Contract and attached rider ("Rider ) contain a series of disclaimer/merger

provisions relating to: (1) the Plaintiff-buyers ' awareness of the then-existing condition of the

propert; (2) the import of any pre-execution statements, representations or covenants made by

the sellers; and (3) the merger and/or non-surival of any pre-closing statements, contract

obligations and waranties.

Specifically, paragraph 12 of the Contract states inter alia that "(p)urchaser

acknowledges and represents that Purchaser is fully aware of the physical condition and state of

repair of the Premises and of all other propert included in this sale , based on Purchaser s own

inspection and investigation thereofI.)" The foregoing provision fuher states that: (1) the

purchasers have not relied upon any "statements or representations , written or oral , as to the

physical condition, state of repair * * * or any other matter related to the Premises * * * given or

made by Seller;" and (2) that the purchasers were acquiring the propert "' as is ' in (its) present

condition and state of repair" (Contract 12).

Paragraph 41 of the Rider, titled "Propert Condition Disclosure " similarly states inter

alia that " (p)urchaser fuher represents (that) they have been afforded the opportunity to have

the building(s) on the premises inspected by an inspector or engineer of their choice * * * and

agree to accept the premises ' as is,''' and that the " (s)eller makes no representation and/or

waranties * * * as to the physical condition of the premises.

The above Rider provision additionally states that "except as specifically set forth herein

* * * any and all discussions between the paries as to the condition of the premises are set forth

herein or merged herein and Purchaser agrees (that) they have not relied on and do not rely on

any representation or statements of Seller * * * See also Contract 11 ( c) which provides that

none of Seller s covenants, representations, warranties or other obligations contained in this

contract shall survive Closing.

Paragraph 37 of the Rider provides as well that " (t)he acceptance of the deed by the

purchaser shall be deemed full performance and discharge of every agreement and obligation

the par of the seller, except those , if any, which are herein specifically stated to surive the

delivery of the deed.

Both the Contract and Rider contain additional provisions stating in sum that all pre-

contract discussion as to the condition of the propert was merged into the agreement and that

the purchasers have not relied - and do not rely - upon any statements made by the seller

(Rider 41; Contract 11 (c), 27, 28). Lastly, paragraph 28(h) of the Contract states that

(t)his contract is intended for the exclusive benefit of the paries hereto * * * and shall not be

for the benefit of, and shall not create any rights in or be enforceable by, (any) other person or

entity.

In April of2005 , Saeid E. Jalayer and Atai fuher subdivided the parcel and Plaintiffs

Negin Jalayer and Saa Jalayer apparently acquired several of the subdivided lots (Fuller (Opp)

Aff. 7; A. Cmplt. 19-22). Plaintiffs allege that, in March of 2006 , while in the process of

performing work on the parcel prior to constrction, they noticed a "black substace

permeating the soil (A. Cmplt. 25; Fuller (Opp) Aff. 9). The Plaintiffs retained an

environmental/engineering firm to investigate and test the materials they discovered and were

informed that the soil was contaminated with "coal ash" and other noxious matter (A. Cmplt.

27).

According to the Plaintiffs , LILCO had long maintained an electric generating facilty at

Glenwood Landing, about a mile from the propert and, allegedly with the Stiglianos ' consent

had been dumping coal ash and other contaminates on the propert since 1950 (A. Cmplt. 36-

37). The Plaintiffs also allege that, since 1972 , Defendant North Shore Cesspool Cleaning

Company, Inc ("North Shore ) was dumping waste at the propert - also with the Stigliano

Defendants ' alleged knowledge and consent (A. Cmplt. 39-40). The Plaintiffs also contend

that the presence of the waste material has greatly diminished the value of the propert, and that

costly clean-up procedures must now be performed (A. Cmplt. 30- , 42-43; 70-72).

Based on these and other claims of alleged misconduct, the Plaintiffs commenced this

action in August of 2008 , and then served an amended verified complaint containing nine

separately captioned causes of action. More paricularly, the Complaint sets forth claims

alleging violations of CERCLA, the Resource Conservation and Recovery Act, 42 VSC

9 6901 et seq. RCRA"), as well as claims sounding in negligence , trespass, fraud/fraudulent

inducement, breach of contract, and unjust enrichment. The nine causes of action in the

Complaint are as follows:

First Cause of Action - against Defendants LILCO , North Shore, Stigliano and The

Estate 2 for violations of CERCLA

Second Cause of Action - against Defendants LILCO, North Shore, Stigliano and The

Estate for violations of CERCLA

Third Cause of Action - against Defendants LILCO and Nort Shore for violations of the

RCRA

Fourth Cause of Action - against Defendants LILCO, North Shore, Stigliano and the

Estate for negligence

Fifth Cause of Action - against Defendants LILCO , North Shore and The Estate for

interference with Plaintiffs ' enjoyment of their propert,Sixth Cause of Action - against Defendants Stigliano, The Estate and Stigliano Jr. for

fraud/misrepresentation

Seventh Cause of Action - against Defendants Stigliano and The Estate for breach of

contract

Eighth Cause of Action - against Defendant The Estate for unjust enrichment, and

2 In paragraph six of the introductory portion of the Complaint, Plaintiffs refer to Defendant Josephine Stigliano as

Stigliano" and allege that she is the Executrix of Defendant The Estate of Anthony G. Stigliano, which Plaintiffsrefer to as "The Estate." In paragraph seven, Plaintiffs refer to Defendant Anthony Gerard Stigliano, Jr. asStigliano, Jr.

Ninth Cause of Action - against Defendants Stigliano , Stigliano Jr. , J. Stigliano, P.

Stigliano , D. Stigliano and Ahern as the beneficiaries of the Estate.

C. The Paries ' Positions

Defendants argue, without opposition, that the Federal Cours possess exclusive

jurisdiction over one or both ofthe federal statutory claims, and/or alternatively, that the

Plaintiffs have failed to allege compliance with certain applicable conditions precedent to the

relief sought.

In addition, the movants have collectively argued - again without opposition from the

Plaintiffs - that the fourh and fifth causes of action (negligence and trespass , respectively), are

both time-bared by the applicable, three-year limitations periods.

Defendants also submit inter alia that 1) Plaintiffs have not pled the fraud elements with

sufficient paricularity; 2) Defendants Negin Jalayer and Saa Jalayer lack standing to assert a

breach of contract claim as neither was a par to the Contract; 3) the cause of action for unjust

enrichment is not viable in light of the existence of the Contract; and 4) Plaintiffs have failed to

ariculate a basis for the liabilty of the Defendants as beneficiaries of The Estate.

RULING OF THE COURT

Standards for Dismissal

A complaint may be dismissed based upon documenta evidence pursuant to

CPLR 9 3211(a)(1) only if the factual allegations contained therein are definitively contradicted

by the evidence submitted or a defense is conclusively established thereby. Yew Prospect, LLC

v. Szulman 305 AD. 2d 588 (2d Dept. 2003); Sta-Bright Services, Inc. Sutton 17 A.D.3d 570

(2d Dept. 2005). To prevail on a CPLR 9 3211(a)(I) motion, the moving par must show that

the documenta evidence conclusively refutes plaintiffs allegations. AG Capital Funding

Partners, L.P. v. State Street Bank and Trust Co. 5 N.Y.3d 582 , 591 (2005); Leon v. Martinez

84 N.Y.2d 83 87-88 (1994).

In addition, it is well settled that a motion interposed pursuant to CPLR 3211 (a)(7),

which seeks to dismiss a complaint for failure to state a cause of action, must be denied if the

factual allegations contained in the complaint constitute a cause of action cognizable at law.

Guggenheimer Ginzburg, 43 N. 2d 268 (1977); 511 W. 232 Owners Corp. Jennifer

Realty Co. 98 N. 2d 144 (2002). When entertaining such an application, the Cour must

liberally construe the pleading. In so doing, the Cour must accept the facts alleged as true and

accord to the plaintiff every favorable inference which may be drawn therefrom. Leon

Martinez, supra. On such a motion, the Cour wil not, however, presume as true bare legal

conclusions , inherently incredible assertions and factual claims that are flatly contradicted by the

evidence. Palazzolo v. Herrick, Feinstein 298 A.D. 2d 372 (2d Dept. 2002); Daub v. Future

Tech Enterprise, Inc. 885 N.Y.S.2d 115 , 116- 117 (2d Dept. 2009), quoting Well v. Yeshiva

Rambam 300 A.D.2d 580 581 (2d Dept. 2002); see also Maas v. Cornell Univ. 94 N.Y.2d 87

91-92 (1999); Kaisman v. Hernandez 61 A.D. 3d 565 566 (pt Dept. 2009).

B. The Cour Lacks Jurisdiction of the CERCLA and RCRA claims

With respect to both the federal CERCLA and RCRA Act claims (first through third

causes of action), the Cour notes that the Plaintiffs ' responsive submissions do not address-

much less analyze or oppose - the Defendants ' assertions that these claims are defective and

subject to dismissal as a matter of law.

Specifically, the Defendants have argued, without opposition, that the Federal Cours

possess exclusive jurisdiction over one or both of the foregoing statutory claims, and/or

alternatively, that the Plaintiffs have failed to allege compliance with certain applicable

conditions precedent to the relief sought. It is settled that facts appearing in the movant's papers

which the opposing par does not controvert may be deemed to be admitted. See Kuehne &

Nagel, Inc. v. Baiden 36 N. 2d 539 544 (1975); SportsChannel Associates v. Sterling Mets

L.P. 25 A. 3d 314, 315 (15t Dept. 2006). Moreover, at oral argument on these motions

Plaintiffs conceded that this cour lacks jurisdiction over the CERCLA claims.

In light of the foregoing, the Cour dismisses the first, second and third causes of action

in the Complaint.

C. The Fourh and Fifth Causes of Action are Time-Bared

The movants have also collectively argued - again without opposition from the Plaintiffs

- that the fourh and fift causes of action (negligence and trespass , respectively), are both time-

bared by the applicable, three-year limitations periods. See CPLR 9214(3),(4); CPLR 9

214-c(2), see generally, H&P Research, Inc. v. Integra Realty, Inc. 258 A. 2d 270 271 (1

Dept. 1999); Ferran v. Willams 194 A.D.2d 962 963 (3d Dept. 1993) (trespass governed by

three year statute of limitations); cf Bloomingdales, Inc. v. New York City Transit Authority,

Y.3d 61 65-66 (2009) (trespass constituting unlawfl encroachment considered continuous

trespass giving rise to successive causes of action).

CPLR 99 214(3) and (4) provide that actions seeking damages for the taking or detaining

of a chattel , and to recover damages for an injur to propert except as provided in section 214-c

must be commenced within three years. CPLR 9 214-c(2) provides that, notwithstanding the

provisions of section 214 , the three year period within which an action to recover damages for

personal injur or injur to propert caused by the latent effects of exposure to any substace or

combination of substances, in any form, upon or within the body or upon or within propert must

be commenced shall be computed from the date of discovery of the injur by the plaintiff or

from the date when through the exercise of reasonable dilgence such injur should have been

discovered by the plaintiff, whichever is earlier.

The Cour concludes that the movants have sustained their burden of proof with respect

to their limitations claim by establishing that, as framed by the Plaintiffs ' own pleading, any

alleged dumping occured no later than November, 2002 , when the underlying Contract closed

and over five years prior to the commencement of the subject action in August 2008. The

Plaintiffs ' opposition, which consists solely of an attorney s affirmation, does not aver

evidentiar facts establishing that the case falls withn an exception to the statute of limitations.

Indeed, the Plaintiffs ' opposition does not address the limitations issue at all. Nor are there any

allegations from which it can be inferred that the contamination was latent; that it could not have

been discovered prior to March of2006; or that facts exist negating the various contract

disclaimer/merger provisions stating that the Plaintiffs ' were " fully aware" of the propert'

condition based their on pre-execution

, "

inspection" and "investigation thereof' (Contract

12).

As an additional, substantive consideration, trespass is an intentional entry onto the land

of another without justification or permission. Carlson v. Zimmerman 63 AD.3d 772 , 773 (2d

Dept. 2009), quoting Weethalle v. Town of Riverbed 46 AD.3d 802 , 804 (2d Dept. 2007), app.

den. 10 N.Y.3d 708 (2008). Here , Plaintiffs allege that the dumping was performed with the

permission and consent of the prior owners (A Cmplt. 41). Thus, it appears that Plaintiffs

trespass claim is defective on its face.

In light of the foregoing, the Cour dismisses the fourh and fifth causes of action.

D. The Fraud Count Lacks Sufficient Paricularity and is Precluded by Disclaimer

The sixth cause of action sounds in fraud and generally alleges inter alia that prior to

the sale, the Stigliano Defendants (including Anthony G. Stigliano , Jr), made representations that

there were no contaminants in the soil, when, in fact, these Defendants were aware at the time

that these statements were false (A. Cmplt. 69-74).

To establish a cause of action for fraud, Plaintiffs must allege a material

misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable

reliance by the plaintiff and damages. Auricle Partners, LP v. Seward Kassel, LP 12 N.

553 559 (2009); Ross Louise Wise Serve. , Inc. 8 N. 3d 478 488 (2007). A claim rooted in

fraud must be pleaded with the requisite paricularity under CPLR 9 30 16(b) and each pleaded

element must be supported with an allegation of fact. Fink v. Citizens Mortg. Banking Ltd , 148

AD. 2d 578 (3d Dept. 1989); Tal v. Superior Vending, LLC 20 AD.3d 520 521 (2d Dept.

2005).

Additionally, New York adheres to the doctrine of caveat emptor and imposes no duty on

the seller or the seller s agent to disclose any information concernng the premises when the

paries deal at ar s length, unless there is some conduct on the par of the seller or the seller

agent which constitutes active concealment. Jablonski v. Rapalje 14 AD.3d 484 485 (2d Dept.

2005); Mancuso v. Rubin 52 AD3d 580 , 584 (2d Dept. 2008). Moreover, where a contract of

sale provides inter alia that the purchasers were aware of the condition of the premises based

upon their own inspection and investigation; that no representations - written or oral- weremade by the sellers and/or relied upon by the buyers; and that the sale was, in any event, to be

as is " a fraud and/or fraudulent inducement claim generally will not lie. Danann Realty Corp.

v. Harris 5 N. Y.2d 317 (1959); Fabozzi v Coppa 5 AD.3d 722 , 723 (2d Dept. 2004); Kay v.

Pollak 305 A. 2d 637 (2d Dept. 2003).

Here , the Contract provides that the Plaintiffs were not relying upon any pre-contract

oral or written representations made by the sellers; that they inspected - or could have inspected

- the subject propert; that "any and all discussion between the paries as to the condition of the

premises" were set forth and "merged herein;" and that, in any event, the buyers were

purchasing the propert "as is." The Plaintiffs have not addressed the import and effect of the

various disclaimer clauses to which they agreed.

Moreover, while CPLR 9 3016 is not to be interpreted so as to require unassailable proof

of fraud (Pludeman v. Northern Leasing Systems, Inc. 10 N.Y.3d 486 , 492 (2008); Lanzi

Brooks 43 N.Y.2d 778 , 780 (I 977)), the allegations set forth here fall short of establishing

reasonable compliance with the specificity requirements of the statute. See Dumas v. Fiorito, 13

AD.3d 332 (2d Dept. 2004) (lower cour properly dismissed complaint containing only

conclusory allegations of fraud). Indeed, nowhere does the Complaint paricularize preciselywhat was said by Defendants; by whom, or in what specific context the statements in question

were allegedly made. See Jacobs v. Haber 232 A. 2d 372 (2d Dept. 1996) (complaint

properly dismissed where plaintiff failed to allege nature or content of purortedmisrepresentation); Fleet Factors Corp. v. Werblin 114 AD.2d 996 997-998 (2d Dept. 1985)

(bald allegations insufficient to sustain fraud claims). Rather, the Complaint relies upon

obliquely framed allegations which simply lump all Defendants together without any

specification as to the precise tortious conduct charged i. e. without identifying the discrete

fraudulent acts committed by each separately named par. See Cmplt.

, ,-

70-72. Theseassertions are insuffcient to maintain a fraud claim.

See generally Friedman v. Anderson, 23AD.3d 163 166 (Ist Dept.), rearg. den. 803 N.Y.S.2d 514 (Ist Dept. 2005) (mere recitation of

the elements of fraud is insufficient to state a cause of action), Aetna Cas. Sur. Co.

Merchants Mut. Ins. Co. 84 AD.2d 736 (Ist Dept. 1981) (complaint dismissed where plaintiffs

failed to specify tortious conduct of paricular defendants).

It bears noting that the fraud cause of action is based on the claim that the Defendants

made false pre-contract misstatements, on which the Plaintiffs allegedly relied, in signing theoriginal, 2002 Contract (A Cmplt. ,- 70 , 73). However, neither the Complaint nor the

Plaintiffs ' opposing papers explains how Plaintiffs Negin Jayaler and Saa Jalayer could haverelied on these alleged pre-contract statements , given that they were never paries to the original

agreement, having instead acquired their interests from the two original purchasers much later in

2005 (see Cmplt. , ,-,- 19-22).

Additionally, the Cour agrees that Plaintiffs ' allegation that Joseph Stigliano , Jr. actedas "broker" (A Cmplt. , ,- 24), is defeated by documentar evidence in the record theContract provision which expressly states that no broker was utilzed in connection with thetransaction (see Contract, ,- 27; Stigliano Brief at 17). The Plaintiffs ' failure to refute this

evidence fuer defeats their fraud claim. Daub 885 N.Y.S.2d at 117 (complaint containing

factual claims that are flatly contradicted by documentar evidence should be dismissed).

In light of the foregoing, the Cour dismisses the sixth cause of action.

E. Relevant Legal Principles Compel Dismissal of Seventh. Eighth and Ninth Claims

The seventh, eighth and ninth causes of action allege, as against the Stigliano Defendants

respectively: (1) breach of contract; (2) unjust enrichment; and (3) and an undescribed claim

(ninth cause of action), which generally asserts entitlement to money damages based on amounts

that certin Stigliano Defendants allegedly received as beneficiaries of the defendant Estate of

Anthony G. Stigliano (A. Cmplt. 81-83).

As to the breach of contract claim - interposed only against the Stigliano Estate and

Josephine Stigliano - the Complaint merely alleges in bare-bones fashion that the Plaintiffs

performed all their obligations under the Contract but that the Estate Defendants did not fully

perform all of their contractual duties (A Cmplt. 76).

The Plaintiffs ' vaguely pleaded claim violates the general rule that a complaint must

allege the provisions of the contract upon which the claim is based to state properly a breach of

contract claim. Maldonado v. Olympia Mechanical Piping Heating Corp. 8 AD.3d 348 , 350

(2d Dept. 2004); Atkinson v. Mobil Oil Corp. 205 AD.2d 719, 720 (2d Dept. 1994). It is also

defective because the disclaimer/merger clauses preclude recovery on the claims advanced.

Specifically, the relevant disclaimer/merger provisions , together with the "as is" nature of the

underlying sale, conclusively defeat the Plaintiffs ' alleged breach of contract claim. See

Mancuso v. Rubin , supra, 52 A.D.3d at 582- 583; Simone v. Homecheck Real Estate Services

Inc. 42 AD.3d 518 521 (2d Dept. 2007); Contract 11 (c), 12 , 28(a); Rider , 41).

Significantly, where , as here, the contract specifically disclaims the existence of

waranties or representations , a cause of action alleging breach of contract based on such a

waranty or representation canot be maintained. Simone. 42 A.D.3d at 521; Bedowitz Farrell

Dev. Co. 289 AD.2d 432 (2d Dept. 2001) The Plaintiffs have not addressed or opposed the

Defendants ' claims with respect to the application of the foregoing clauses (see Fuller Aff.

18-21), and have otherwse failed to demonstrate the viability of the breach of contract claim, as

interposed against any of the Stigliano movants.

To the extent that the Complaint can be construed as interposing a breach of contract

claim on behalf of Plaintiffs Negin Jayaler and Saa Jalayer, the Cour notes that these

individuals lack stading to rely upon any alleged breach of the underlying sales contract given

that they were not paries to the original agreement (A Cmplt. 19-22). A breach of contract

cause of action canot stand against an individual unless the individual is a signatory to the

contract par to the contract. See generally Black Car and Livery Ins. , Inc. v.

Brokerage, Inc. 28 AD.3d 595 , 596 (2d Dept. 2006); Bouley v. Bouley, 19 A. 3d 1049 , 1050

(4th Dept. 2005); Dember Const. Corp. v. Staten Island Mall 56 A. 2d 768 (1 st Dept. 1977).

Moreover, paragraph 28(h) of the Contract states that "(t)his contract is intended for the

exclusive benefit of the paries hereto * * * and shall not be for the benefit of, and shall not

create any rights in or be enforceable by * * * (any) other person or entity." The foregoing

provision explicitly negates any implication of third par rights. Mendel v. Henry Phipps Plaza

West, Inc. 6 N. 3d 783 , 786- 787 (2006); IMS Engineers-Architects, P. C. v. State 51 ADJd1355 , 1358 (3d Dept. 2008), app. den. 11 N.YJd 706 (2008).

The eighth cause of action is nominally styled as an unjust enrichment claim and

interposed solely against the Stigliano Estate. In sum, the Plaintiffs allege that by reason of the

Defendants ' alleged breach of contract , the Defendants were thereby unjustly enriched (A.

Cmplt. 79-80). That claim is not sufficiently pleaded to withstand a motion to dismiss under

CPLR 9 3211(a)(7).

To prevail on a claim of unjust enrchment, a par must show that (1) the other parwas enriched, (2) at that par' s expense, and (3) that it is against equity and good conscience to

permit the other par to retain what is sought to be recovered. Citbank, N.A. v. Walker, 12

AD.3d 480 481 (2d Dept. 2004), quoting Paramount Film Distrib. Corp. v. State of New York

30 N.Y.2d 415 421 (1972), cert. den. 414 U.S. 829 (1973); AHA Sales, Inc. v. Creative Bath

Products, Inc. 58 AD.3d 6, 19 (2d Dept. 2008). The essential inquiry in any action for unjustenrichment or restitution is whether it is against equity and good conscience to permit the

defendant to retain what is sought to be recovered. Sperry v. Crompton Corp. 8 N.Y.3d 204

215 (2007), quoting Paramount Film Distrib. Corp. v. State of New York, supra at 421. It issettled, however, that the existence of a valid contract governing the subject matter generally

precludes recovery in quasi contract for events arising out of the same subject matter. Adelaide

Productions, Inc. v. BKN Intern. AG 38 A. 3d 221 , 225-226 (1 st Dept. 2007);

Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co. 70 N.Y.2d 382 388 (1987).

Here, the Plaintiffs ' unjust enrichment allegations are bare- bones at best, and do notinclude supporting averments ariculating precisely why it would be against equity and goodconscience to permit the defendant to retain what is sought to be recovered.

See Sperry

Crompton Corp. , supra 8 N.Y.3d at 215. Rather, the Complaint merely asserts in entirely

circular fashion, that the alleged unjust enrichment exists by virtue of the "breach of contract"(A. Cmplt. 79). Moreover, there plainly exists a valid agreement governing the subject matter

in question (Whitman Realty Group, Inc. v. Galano 41 A.D.3d 590 592-593 (2d Dept. 2007)),

albeit one whose terms preclude recovery on the theories advanced. In light of the Contract

disclaimer and related provisions , the Plaintiffs canot show that the Defendant Estate was

unjustly enriched at the Plaintiffs ' expense and/or that equity and good conscience require

restitution of any benefits received. Spector v. Wendy, 63 A.D.3d 820 , 822 (2d Dept. 2009);

Whitman Realty Group, Inc. v. Galano , supra.

Finally, the Defendants have argued - and the Cour agrees - that the vaguely framedninth cause of action does not set forth facts upon which a cognizable claim for relief can be

based.

The ninth cause of action avers, in obscure fashion, that the Plaintiffs are entitled to

recover money damages from certain Stigliano Defendants - a claim apparently based solely ontheir status as beneficiaries of the defendant Estate of Anthony G. Stigliano (A. Cmplt.

81-83). There are no accompanying allegations which iluminate the grounds relied upon to support

the Defendants ' alleged legal duty to make the payments demanded. Nor have the Plaintiffs

addressed or opposed the Defendants ' contentions that the claim is defective as a matter of law.

In sum, and given that the Plaintiffs themselves have not addressed their ninth cause of action or

otherwise shown that it sets forth an actionable theory of recovery, this cause of action should be

dismissed.

The Cour has considered the Plaintiffs ' remaining contentions and concludes that they

are insufficient to defeat the movants ' respective applications to dismiss the Complaint.

In light of the foregoing, the Cour dismisses the seventh, eighth and ninth causes ofaction in the Complaint.

Accordingly, it is

ORDERED that the motions to dismiss the Amended Verified Complaint against all

Defendants are granted, and the Amended Verified Complaint is dismissed against all

Defendants.

All matters not decided herein are hereby denied.

This constitutes the decision and order of the Cour.

ENTER

DATED: Mineola, NY

November 19 2009

lS.

xxx ENTERlinNOV 24 2009

NASSAU VUI"IVCOUNTY CLERK' S OFFICE