E.D. & F. Man Sugar, Inc. v. ZZY Distributors, Inc.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about February 16, 2016, which, to the extent appealed from, denied plaintiff’s motion for partial summary judgment on its claims for breach of contract, unjust enrichment and alter ego, unanimously affirmed, without costs. We reject plaintiff’s attempt to reclassify its cause of action for breach of contract as one for goods sold and delivered, which is not asserted in the complaint. The court properly declined to consider plaintiff’s unjust enrichment arguments, submitted for the first time in its reply papers (see Matter of Erdey v City of New York, 129 AD3d 546 [1st Dept 2015]; All State Flooring Distribs., L.P. v MD Floors, *453 LLC, 131 AD3d 834, 835-836 [1st Dept 2015]). Even if this Court were to consider plaintiff’s unjust enrichment claim, there are issues of fact as to whether and to what extent there is any unpaid balance in connection with the three shipments at issue. Issues of fact also preclude summary judgment on plaintiff’s alter ego claim. While plaintiff has established the fact of payments out of defendant ZZY Distributors, Inc.’s account to entities owned or controlled by its principals, it has not demonstrated that they were improper (see Forum Ins. Co. v Texarkoma Transp. Co., 229 AD2d 341, 342 [1st Dept 1996]). We considered plaintiff’s remaining contentions and find them unavailing. Concur—Acosta, J.P., Renwick, Mazzarelli, Gische and Gesmer, JJ.