IN RE: Richard VACCARI (2019)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on March 30, 2018, which, insofar appealed from as limited by petitioners' brief, granted respondents' cross motion for summary judgment dismissing petitioners' claims for unjust enrichment, conversion and misappropriation, and attorney's fees, unanimously affirmed, without costs.

The court was not required to notify petitioners pursuant to CPLR 3211(c) that it was converting respondents' cross motion to one for summary judgment, because respondents moved pursuant to both CPLR 3211 and 3212.  Petitioners could hardly have been unaware that respondents were moving for summary judgment, as they submitted a statement of uncontroverted facts (see Rules of Commercial Div of the Sup Ct [22 NYCRR 202.70(g) ] rule 19–a[a] ).

The motion court providently exercised its discretion by deeming admitted the unopposed and uncontroverted statements in respondents' statement of material facts (see e.g. Harmacol Realty Co. LLC v. Nike, Inc., 143 A.D.3d 503, 504–505, 39 N.Y.S.3d 417 [1st Dept. 2016];  Rules of Commercial Div of the Sup Ct [22 NYCRR 202.70(g) ] rule 19–a[b] and [c] ).

Petitioners' appellate argument that they needed discovery to oppose respondents' motion is unpreserved (see generally Levy v. Carol Mgt. Corp., 199 A.D.2d 140, 605 N.Y.S.2d 82 [1st Dept. 1993] ).  Moreover, their affidavit in support of discovery failed to show that “facts essential to justify opposition may exist but cannot then be stated” warranting further discovery (CPLR 3212[f] ).

The court properly granted summary judgment dismissing petitioners' claims for unjust enrichment and conversion/misappropriation.  According to respondents' statement of uncontroverted facts, nonparty Piccinini Brothers Inc. (of which respondent Paul Vaccari is the sole shareholder) has overpaid the rent due to respondent Ametal Realty Corp.

The court correctly dismissed petitioners' claim for attorneys' fees because they did not “achieve a substantial benefit” on the merits of their substantive claims (see Seinfeld v. Robinson, 246 A.D.2d 291, 294, 676 N.Y.S.2d 579 [1st Dept. 1998] ).