On September 13, 2023, the Second Department issued a decision in Bedford-Carp Constr., Inc. v. Brooklyn Union Gas Co., 2023 NY Slip Op. 04566, holding that a plaintiff sufficiently had alleged the close relationship needed for an unjust enrichment claim, explaining:
On or about May 10, 2016, the plaintiff contracted with the New York City Department of Design and Construction (hereinafter NYCDDC) to install a box storm sewer in and around Neptune Avenue, in Brooklyn, and an adjacent parcel known as Coney Island Creek. While it was performing work under the contract, the plaintiff discovered that approximately 45,000 tons of soil and subsoil at the construction site was contaminated. After an environmental consultant approved by NYCDDC found that the defendant’s gas facilities had caused the contamination, the NYCDDC directed the defendant to remove and remediate the contaminated soil. The defendant refused to do so, and the plaintiff remediated the contamination in order to proceed with its work. . . .
[T]he Supreme Court erred in granting that branch of the defendant’s motion which was to dismiss the third cause of action, alleging unjust enrichment. Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party] to retain what is sought to be recovered. The essential inquiry in any action for unjust enrichment is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated.
Here, affording the complaint a liberal construction, we find that it sufficiently alleged that the defendant was unjustly enriched, at the plaintiff’s expense, by the plaintiff’s remediation of the contaminated soil, and that it would be against equity and good conscience to permit the defendant to retain what was sought to be recovered. Moreover, we find that the Supreme Court erred in determining, in effect, that the connection between the parties was too attenuated to support a claim for unjust enrichment. Accordingly, the court should have denied that branch of the defendant’s motion which was to dismiss the third cause of action, alleging unjust enrichment.
(Internal quotations and citations omitted).