Midwest First Financial Limited Partership III v. First American Title Insurance

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), entered October 25, 2002, which denied its motion for summary judgment on its counterclaim to recover damages for unjust enrichment. Ordered that the order is affirmed, with costs. The defendant correctly contends that its counterclaim to recover damages for unjust enrichment was proper despite the existence of a contract between the parties (see Morales v Grand Cru Assoc., 305 AD2d 647 [2003]; Tridee Assoc. v New York City School Constr. Auth., 292 AD2d 444, 445 [2002]). However, the defendant failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), since triable issues of fact exist as to whether “it would be against equity and good conscience to permit [the respondent, its insured,] to retain the benefit” it received from the defendant’s payment of real estate taxes and insurance payments on the subject property for which [498] the defendant issued a title insurance policy (Lake Minnewaska Mtn. Houses v Rekis, 259 AD2d 797, 798 [1999]). The defendant’s remaining contentions are without merit. Santucci, J.P., Luciano, Rivera and Fisher, JJ., concur.