CARROCCIO v. Saveria Camia, et al., appellants. (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the defendant Saveria Camia, the defendant Payment Alliance International, Inc., and the defendants E–Z Money ATM Services Corp. and Frank Ercole separately appeal from an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated March 16, 2021.  The order denied those branches of those defendants’ separate motions which were for summary judgment dismissing the second amended complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and those branches of the separate motions of the defendant Saveria Camia, the defendant Payment Alliance International, Inc., and the defendants E–Z Money ATM Services Corp. and Frank Ercole which were for summary judgment dismissing the second amended complaint insofar as asserted against each of them are granted.

The plaintiff Ronald P. Carroccio was an owner of the plaintiff Cash on the Spot ATM Services, LLC (hereinafter COTS).  COTS operated a network of ATMs located at various businesses.  The plaintiffs commenced this action alleging, inter alia, that the defendant Cosmo Camia, who was also an owner of COTS, sold COTS to the defendants E–Z Money ATM Services Corp. and Frank Ercole (hereinafter together the E–Z Money defendants) without permission and without compensating Carroccio.  The second amended complaint, among other things, asserted (1) causes of action against the E–Z Money defendants alleging unjust enrichment, conversion, and fraud, (2) causes of action against the defendant Saveria Camia alleging unjust enrichment, conversion, and fraud, and (3) causes of action against the defendant Payment Alliance International, Inc. (hereinafter PAI), alleging breach of contract and negligence.  Thereafter, the E–Z Money defendants, Saveria Camia, and PAI separately moved, inter alia, for summary judgment dismissing the second amended complaint insofar as asserted against each of them.  In an order dated March 16, 2021, the Supreme Court denied those branches of the separate motions.  The E–Z Money defendants, Saveria Camia, and PAI separately appeal.

“To prevail on a claim of unjust enrichment, a party 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” (Old Republic Natl. Tit. Ins. Co. v. Luft, 52 A.D.3d 491, 491–492, 859 N.Y.S.2d 261;  see Columbia Mem. Hosp. v. Hinds, 38 N.Y.3d 253, 275, 172 N.Y.S.3d 649, 192 N.E.3d 1128).  Here, the E–Z Money defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging unjust enrichment insofar as asserted against them by demonstrating that they were not unjustly enriched at the plaintiffs’ expense (see Nissan Motor Acceptance Corp. v. Scialpi, 94 A.D.3d 1067, 1068, 944 N.Y.S.2d 160;  Old Republic Natl. Tit. Ins. Co. v. Luft, 52 A.D.3d at 492, 859 N.Y.S.2d 261).  In opposition, the plaintiffs’ bare statements of alleged wrongdoing by the E–Z Money defendants failed to raise a triable issue of fact (see Mehmedovic v. Xhrretovic, 189 A.D.3d 1573, 1574, 135 N.Y.S.3d 286).

Saveria Camia also established her prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging unjust enrichment insofar as asserted against her, as her connection with the plaintiffs was “too attenuated” and there is no indication that she had a relationship with the plaintiffs that could have caused reliance or inducement on the plaintiffs’ part (Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104;  see Crescimanni v. Trovato, 162 A.D.3d 849, 851, 80 N.Y.S.3d 89).  In opposition, the plaintiffs failed to raise a triable issue of fact.

“A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession” (Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50, 827 N.Y.S.2d 96, 860 N.E.2d 713;  see Westbury Recycling, Inc. v. Westbury Transfer & Recycling, LLC, 209 A.D.3d 929, 932, 177 N.Y.S.3d 101).  Here, Saveria Camia and the E–Z Money defendants each demonstrated, prima facie, that they had not exercised unauthorized dominion over the plaintiffs’ money or personal property (see Jaybar Realty Corp. v. Armato, 175 A.D.3d 1391, 1394, 109 N.Y.S.3d 337).  In opposition, the plaintiffs failed to raise a triable issue of fact.

“The elements of a cause of action to recover damages for fraud are (1) a misrepresentation or a material omission of fact which was false, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages” (Fox Paine & Co., LLC v. Houston Cas. Co., 153 A.D.3d 673, 677, 60 N.Y.S.3d 294;  see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976).  “Where a cause of action or defense is based upon ․ fraud ․ the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]).  Here, Saveria Camia and the E–Z Money defendants demonstrated, prima facie, that the plaintiffs did not rely on a misrepresentation made by either of them (see Kugel v. Reynolds, 228 A.D.3d 743, 751–752, 214 N.Y.S.3d 700).  In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted those branches of the separate motions of Saveria Camia and the E–Z Money defendants which were for summary judgment dismissing the second amended complaint insofar as asserted against each of them.

The Supreme Court also should have granted that branch of PAI's motion which was for summary judgment dismissing the second amended complaint insofar as asserted against it.  PAI established its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for breach of contract insofar as asserted against it by demonstrating that it performed in accordance with the terms of its contract with Cosmo Camia and, thus, did not breach any of the contract's terms.  In opposition, the plaintiffs failed to raise a triable issue of fact.

PAI also established its entitlement to judgment as a matter of law dismissing the cause of action alleging negligence insofar as asserted against it, since that cause of action failed to allege conduct giving rise to a breach of a legal duty independent of PAI's contract with Cosmo Camia (see Countrywide Home Loans, Inc. v. United Gen. Tit. Ins. Co., 109 A.D.3d 953, 954, 972 N.Y.S.2d 296).  In opposition, the plaintiffs failed to raise a triable issue of fact as to whether PAI breached a duty of care owed to them.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

LASALLE, P.J., BRATHWAITE NELSON, DOWLING and VENTURA, JJ., concur.