Maor v. Blu Sand Int'l Inc.

• Decision Date: 20 October 2016
• Citation: 143 A.D.3d 579,2016 N.Y. Slip Op. 06887,38 N.Y.S.3d 907 (Mem)
• Parties: Boaz MAOR, Plaintiff–Respondent, v. BLU SAND INTERNATIONAL INC., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 579
38 N.Y.S.3d 907 (Mem)
2016 N.Y. Slip Op. 06887

Boaz MAOR, Plaintiff–Respondent,
v.
BLU SAND INTERNATIONAL INC., et al., Defendants–Appellants.

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

Oct. 20, 2016.

Dorsey & Whitney LLP, New York (Bruce R. Ewing of counsel), for appellants.

Daley Law, P.C., New York (M. Teresa Daley of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered January 13, 2016, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

38 N.Y.S.3d 908

Defendants demonstrated their entitlement to judgment as a matter of law on plaintiff's breach of contract claim by submitting evidence that, from and after the date of the subject agreement, plaintiff continued to market and sell, for his own benefit, Magic Towels, which pertained to the Invention Assets, without ever obtaining express authorization from defendant Blu Sand International, Inc. Thus, plaintiff's breach of the agreement precluded him from satisfying a necessary element on a cause of action for breach of contract, namely, his own performance under the agreement (see Dorfman v. American Student Assistance, 104 A.D.3d 474, 960 N.Y.S.2d 420 [1st Dept.2013] ).

“The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter” (Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). Here, the unjust enrichment claim cannot be maintained, since there can be no quasi-contract claim against a third-party nonsignatory to a contract that covers the subject matter of the claim (see Randall's Is. Aquatic Leisure, LLC v. City of New York, 92 A.D.3d 463, 464, 938 N.Y.S.2d 62 [1st Dept.2012], lv. denied 19 A.D.3d 804, 2005 WL 1414346 [2012] ; Bellino...