SCHULTZ v. Bonnie Gershman, Defendant. (2009)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered October 10, 2008, which, insofar as appealed from as limited by the brief, granted defendant Laurence Gershman's motion to dismiss the cause of action for breach of contract as against him and granted the motion of defendants Omphalius, Caprio, Keay and Mannix to dismiss the cause of action for unjust enrichment as against them, unanimously modified, on the law, to deny Gershman's motion, and otherwise affirmed, with costs against Laurence Gershman in favor of plaintiffs.

The court should not have considered the Bloomberg Finance L.P. report demonstrating the trading history of the subject stock, since it was improperly raised for the first time in Gershman's reply (see McNair v. Lee, 24 A.D.3d 159, 805 N.Y.S.2d 67 [2005] ). In any event, the report does not conclusively establish a defense to plaintiffs' allegations (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). While it demonstrates that the stock was trading in December 2006, it does not conclusively establish that a “liquid, public market” for the shares had developed as that term was defined in the parties' agreements.

Plaintiffs' unjust enrichment cause of action is barred by the existence of the contract between the parties (see Goldstein v. CIBC World Mkts. Corp., 6 A.D.3d 295, 296, 776 N.Y.S.2d 12 [2004] ).