Malta Props. 1, LLC v. Town of Malta

• Decision Date: 20 October 2016
• Parties: MALTA PROPERTIES 1, LLC, Appellant, v. TOWN OF MALTA, Respondent.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1142

39 N.Y.S.3d 544

2016 N.Y. Slip Op. 06935

MALTA PROPERTIES 1, LLC, Appellant,

v.TOWN OF MALTA, Respondent.

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

Oct. 20, 2016.

Horigan, Horigan & Lombardo, PC, Amsterdam (James A. Lombardo of counsel), for appellant.

Thomas W. Peterson, Town Attorney, Round Lake, for respondent.

Before: PETERS, P.J., EGAN JR., LYNCH, ROSE and AARONS, JJ.

AARONS, J.

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered April 22, 2015 in Saratoga County, which, among other things, searched the record and granted partial summary judgment to defendant.

In 2006, defendant adopted the findings in a generic environmental impact statement (hereinafter GEIS) that was commissioned for the purpose of identifying, among other things, infrastructure and roadway improvements that would be needed as a consequence of anticipated growth and development in the community. As a means to equitably spread the cost for these capital improvements, the GEIS provided for the assessment of mitigation fees to developers. The amount of a mitigation fee would be proportionate to the impact that a particular developmental project would have to an area. The mitigation fees were placed in a fund from which monies would be used to pay for the capital improvements identified in the GEIS.

Plaintiff, a developer, planned to build a CVS pharmacy at a commercial location. In February 2009, plaintiff maintains that defendant agreed to waive the mitigation fee to be assessed to plaintiff, which was estimated to be $115,752, and, in exchange, plaintiff would make improvements at the intersection by Route 9 and Kendall's Way—one of the areas identified in the GEIS for improvement. Plaintiff anticipated that such improvements to the intersection would cost $113,406. After construction began, however, plaintiff was required to make additional improvements, which resulted in plaintiff having to incur additional costs of $287,684. Plaintiff subsequently commenced this action to recover only those additional costs, emphasizing that it was not seeking to recover for work contemplated under the original agreement.

Following discovery, defendant moved for summary judgment and plaintiff cross-moved for similar relief. Supreme Court denied defendant's motion based upon its failure to include a copy of the pleadings as part of its motion. Supreme Court also denied plaintiff's cross motion but, upon a search of the record of the cross motion, granted defendant partial summary judgment and dismissed the claims for unjust enrichment, quantum meruit and the imposition of an improper tax. Plaintiff appeals.

We agree with plaintiff that Supreme Court, upon a search of the record, erred in dismissing the unjust enrichment cause of action. A claim of unjust enrichment requires that the plaintiff establish that the defendant was enriched, the enrichment came at the expense of the plaintiff, and permitting the defendant to retain what the plaintiff seeks to recover contravenes equity and good conscience (see Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ; Land Man Realty, Inc. v. Weichert, Inc., 94 A.D.3d 1221, 1222–1223, 941 N.Y.S.2d 801 [2012] ). The essential inquiry is “whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 285 N.E.2d 695 [1972], cert. denied 414 U.S. 829, 94 S.Ct. 57, 38 L.Ed.2d 64 [1973] ).

The record discloses triable issues of fact as to whether the additional work performed by plaintiff, which led to the increased costs, came at defendant's direction. There is no dispute that some of the additional work requirements, such as intersections that complied with the Americans with Disabilities Act and poles that could support required traffic signal heads, were imposed by the Department of Transportation (hereinafter DOT). The testimony and documentary evidence, however, reveal that other additional requirements, such as changes to the minimum turning radius and pedestrian amenities at the intersection, extending a water line extension and obtaining a cross-access easement, may have derived from defendant's behest (see Engineering & Tech. Resources, Inc. v. Xcel...