| E.D. & F. Man Sugar, Inc. v ZZY Distribs., Inc. |
| 2017 NY Slip Op 03710 |
| Decided on May 9, 2017 |
| 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 May 9, 2017
Acosta, J.P., Renwick, Mazzarelli, Gische, Gesmer, JJ.
3952 653963/12
v
ZZY Distributors, Inc., etc., et al., Defendants-Respondents, Mariana Deutsch, Defendant.
Franzino & Scher, LLC, New York (Frank J. Franzino, Jr. of counsel), for appellant.
Mark S. Friedlander, New York, for respondents.
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, 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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2017
CLERK