Markov v. Katt

• Decision Date: 01 October 2019
• Docket Number: 9940,Index 156493/15
• Citation: 176 A.D.3d 401,109 N.Y.S.3d 295
• Parties: Dmitry MARKOV, Plaintiff–Appellant–Respondent, v. Malcolm KATT, Defendant–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 401
109 N.Y.S.3d 295

Dmitry MARKOV, Plaintiff–Appellant–Respondent,
v.
Malcolm KATT, Defendant–Respondent–Appellant.

9940
Index 156493/15

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

ENTERED: OCTOBER 1, 2019

109 N.Y.S.3d 296

Law Office of Jorge Sorote, New York, (Jorge Sorote of counsel), for appellant-respondent.

Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for respondent-appellant.

Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ.

176 A.D.3d 401

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about April 2, 2018, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the complaint, denied plaintiff's cross motion for summary judgment on his complaint, granted plaintiff/counterclaim defendant's cross motion for summary judgment dismissing the counterclaim, and denied defendant/counterclaim plaintiff's motion for summary judgment on his counterclaim, unanimously affirmed, without costs.

The motion court properly dismissed plaintiff's unjust enrichment claim because such a cause of action "is not available where it simply duplicates, or replaces, a conventional contract ... claim" ( Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 [2012] ). It is beyond dispute that defendant Katt breached the parties' settlement agreement by suing plaintiff Markov in a prior action.

Pursuant to Paramount Pictures Corp. v. Allianz Risk Transfer AG, 141 A.D.3d 464, 467, 36 N.Y.S.3d 11 [1st Dept. 2016], affd 31 N.Y.3d 64, 73 N.Y.S.3d 472, 96 N.E.3d 737 [2018], the court should not have found Markov's contract claim barred by res judicata. Markov was not required to bring a counterclaim for Katt's breach of the settlement agreement in the prior action (see CPLR 3109 ).

However, on the merits, and based on the arguments made by the parties, the court properly dismissed the contract claim. The elements of such a claim are "the existence of a...