LAZAROFF v. PARACO GAS CORPORATION (2012)

In an action to recover damages, inter alia, for violations of General Business Law § 349, the defendant Paraco Gas Corporation appeals, and the defendant Porco Energy Corporation separately appeals, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 25, 2011, as denied those branches of their respective motions which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, and fourth causes of action, and so much of the sixth cause of action as sought to recover damages for breach of an express warranty, insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

 The Supreme Court properly denied those branches of the defendants' respective motions pursuant to CPLR 3211(a)(1) and (7) which were to dismiss the first, second, and fourth causes of action, and so much of the sixth cause of action as sought to recover damages for breach of an express warranty, insofar as asserted against each of them.   Contrary to the defendants' contentions, the separate affidavits they each submitted did not warrant dismissal of those causes of action pursuant to CPLR 3211(a)(7), since they did not establish conclusively that any fact alleged in the complaint is not a fact at all and that no significant dispute exists on the matter (see Sokol v. Leader, 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153).

The plaintiff alleged a valid cause of action to recover damages for violations of General Business Law §§ 349 and 350 (see Sokol v. Leader, 74 A.D.3d at 1180–1182, 904 N.Y.S.2d 153;  Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 161–162, 893 N.Y.S.2d 208;  Sclafani v. Barilla Am., Inc. 19 A.D.3d 577, 796 N.Y.S.2d 548;  see also Waldman v. New Chapter, Inc. 714 F.Supp.2d 398, 405–406;  cf. Vigiletti v. Sears, Roebuck & Co., 42 A.D.3d 497, 497, 838 N.Y.S.2d 785;  see generally Andre Strishak & Assoc. v. Hewlett Packard Co., 300 A.D.2d 608, 609, 752 N.Y.S.2d 400).

The plaintiff also alleged a valid cause of action to recover damages for unjust enrichment (see Cox v. Microsoft Corp., 8 A.D.3d 39, 40, 778 N.Y.S.2d 147;  Waldman v. New Chapter, Inc., 714 F.Supp.2d at 400, 404–405;  Watts v. Jackson Hewitt Tax Serv. Inc., 579 F.Supp.2d 334, 354;  see generally Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104;  Sperry v. Crompton Corp., 8 N.Y.3d 204, 215–216, 831 N.Y.S.2d 760, 863 N.E.2d 1012), and alleged a valid cause of action to recover damages for breach of an express warranty (see Jesmer v. Retail Magic, Inc., 55 A.D.3d 171, 181, 863 N.Y.S.2d 737;  Williams v. Union Carbide Corp., 17 A.D.2d 661, 662, 230 N.Y.S.2d 476;  see also Schimmenti v. Ply Gem Indus., 156 A.D.2d 658, 659, 549 N.Y.S.2d 152;  cf. Donahue v. Ferolito, Vultaggio & Sons, 13 A.D.3d 77, 79, 786 N.Y.S.2d 153).

 In addition, the documentary evidence submitted by the defendants did not utterly refute the plaintiff's factual allegations and thereby conclusively establish a defense as a matter of law (see CPLR 3211[a][1];  Springer v. Almontaser, 75 A.D.3d 539, 540, 904 N.Y.S.2d 765;  Williamson, Picket, Gross, Inc. v. Hirschfeld, 92 A.D.2d 289, 460 N.Y.S.2d 36;  Chance v. Guaranty Trust Co. of N.Y., 173 Misc. 754, 757, 20 N.Y.S.2d 635, affd. 257 App.Div. 1006, 13 N.Y.S.2d 785, affd. 282 N.Y. 656, 26 N.E.2d 802).