On July 28, 2023, the Fourth Department issued a decision in Milherst Constr., Inc. v. Natale Bldg. Corp., 2023 NY Slip Op. 04051, holding that a question of fact regarding whether extra work was covered by a contract precluded dismissal of an unjust enrichment claim, explaining:
Plaintiff contends that the court erred in granting the motion with respect to the third cause of action because there is a dispute whether the contract covered the extra work for which plaintiff seeks to be paid and, in the event that the work is not covered by the contract, it is entitled to proceed under the alternative theory of unjust enrichment. We agree with plaintiff. It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party, and every available inference must be drawn in the non-moving party’s favor.
Here, we conclude that defendants failed to meet their initial burden on their motion. A cause of action for unjust enrichment requires a showing that the defendant was enriched at the expense of the plaintiff and that it would be inequitable for the defendant to retain the benefit provided by the plaintiff. Although 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, a bona fide dispute concerning whether additional work is covered by a contract is sufficient to permit an unjust enrichment cause of action to proceed. Defendants, in support of their motion, submitted an affidavit from their principal that raises questions of fact whether the extra work was covered by the contract and, thus, defendants are not entitled to summary judgment dismissing the cause of action for unjust enrichment. Defendants’ failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers.
(Internal quotations and citations omitted).