| JPMorgan Chase Funding Inc. v Cohan |
| 2016 NY Slip Op 02582 |
| Decided on April 5, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on April 5, 2016
Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.
731 151693/13
v
William D. Cohan, Defendant-Respondent-Appellant.
Levi Lubarsky Feigenbaum & Weiss LLP, New York (Howard B. Levi of counsel), for appellant-respondent.
Liddle & Robinson, L.L.P., New York (Blaine H. Bortnick of counsel), for respondent-appellant.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 31, 2015, which denied plaintiff's motion for summary judgment on the second, third, fourth and fifth causes of action and dismissing defendant's amended counterclaim, and denied defendant's cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant defendant's motion as to the first and fifth causes of action, and otherwise affirmed, without costs.
The evidence presented by plaintiff on its second motion for summary judgment was not new, and plaintiff demonstrated no other sufficient cause for making the second motion (see Brown Harris Stevens Westhampton LLC v Gerber, 107 AD3d 526 [1st Dept 2013]).
Since plaintiff failed to establish that there was an express contract, or to raise an issue of fact as to the existence of an express contract, the first cause of action, alleging breach of contract, must be dismissed. The fifth cause of action, for account stated, should also be dismissed, as time-barred.
Issues of fact preclude summary judgment in either party's favor on the second, third and fourth causes of action, alleging implied-in-fact contract, money lent, and unjust enrichment, and [*2]on defendant's amended counterclaim for an accounting.
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 5, 2016
CLERK