Opinion
2012-12-27
KINGSTON OIL SUPPLY CORPORATION, Appellant, v. John SMITH, Respondent.
John J. Greco, Kingston, for appellant. John Smith, Athens, respondent pro se.
John J. Greco, Kingston, for appellant. John Smith, Athens, respondent pro se.
Before: MERCURE, J.P., ROSE, STEIN and EGAN JR., JJ.
STEIN, J.
Appeal from an order of the Supreme Court (Pulver Jr., J.), entered February 10, 2012 in Greene County, which, sua sponte, dismissed the complaint.
Plaintiff, a home fuel oil distributor, admittedly delivered approximately 180 gallons of fuel oil to defendant's home erroneously. When the error was discovered, plaintiff sought to either pump out the fuel from defendant's oil tank or recover payment from defendant therefor. After defendant refused both requests, plaintiff commenced this action to recover the value of the fuel on the ground of defendant's unjust enrichment. Following a pretrial conference, Supreme Court dismissed the complaint, sua sponte, and this appeal by plaintiff ensued.
“Although an order entered on a court's sua sponte motion is not appealable as of right because it is not considered an order deciding a motion made on notice, we will treat [plaintiff's] notice of appeal as an application for leave to appeal and grant that application” ( Shields v. Carbone, 99 A.D.3d 1100, 1101 n. 2, 955 N.Y.S.2d 216 [2012] [citation omitted]; seeCPLR 5701[a][2], [c]; Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003];Kremen v. Benedict P. Morelli & Assoc., P.C., 80 A.D.3d 521, 523, 916 N.Y.S.2d 44 [2011] ).
We affirm. “The essential inquiry in any action for unjust enrichment ... is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” ( Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] [internal quotation marks and citation omitted] ). However, a showing that the plaintiff's actions have benefitted the defendant will not suffice to establish a cause of action for unjust enrichment ( see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 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 [2007];Clark v. Daby, 300 A.D.2d 732, 732, 751 N.Y.S.2d 622 [2002],lv. denied100 N.Y.2d 503, 762 N.Y.S.2d 873, 793 N.E.2d 410 [2003] ). The plaintiff must also demonstrate an existing relationship with, or an inducement by, the defendant ( see Sperry v. Crompton Corp., 8 N.Y.3d at 215–216, 831 N.Y.S.2d 760, 863 N.E.2d 1012;compare ARB Upstate Communications LLC v. R.J. Reuter, L.L.C., 93 A.D.3d 929, 933–934, 940 N.Y.S.2d 679 [2012] ).
Here, it is undisputed that defendant was never a customer of plaintiff and did not request that plaintiff deliver oil to him. Moreover, plaintiff's delivery tag demonstrates that the oil was supposed to be delivered to an address on a different street from defendant's residence, and neither the description of the house nor the location of the fuel intake set forth on the tag matched that of defendant's home. Thus, plaintiff is unable to demonstrate that its error was induced by defendant. In addition, defendant's refusal to compensate plaintiff was not against equity and good conscience, as defendant stated on the record before Supreme Court that plaintiff would not match the oil price for which defendant had contracted with a different distributor and defendant was forced to forfeit his ability to take advantage of the lower contract price because his fuel oil tank was full. Defendant further alleged that plaintiff's fuel oil caused his furnace to malfunction, necessitating repair by a service contractor. Finally, as both defendant and Supreme Court noted, pumping out the oil from defendant's fuel tank could result in further damages to defendant due to the possibility of an oil spill. Under these circumstances, we find no error in Supreme Court's determination that defendant was not unjustly enriched by his retention of plaintiff's fuel oil.
Nor do we find merit to plaintiff's argument that Supreme Court erred in dismissing its complaint, sua sponte. While such a dismissal is rarely permitted due to the potential for prejudice to the plaintiff, no prejudice was suffered by plaintiff here. Specifically, a sufficient record was developed at the pretrial conference demonstrating that there was no dispute as to the underlying facts. Inasmuch as only a legal question was presented and plaintiff's theory of unjust enrichment was meritless, for the reasons already set forth herein, it was not improper for Supreme Court to dismiss the complaint in the absence of a formal motion for such relief ( see generally Martocci v. Bowaskie Ice House, LLC, 31 A.D.3d 1021, 1022, 819 N.Y.S.2d 598 [2006],lv. dismissed7 N.Y.3d 916, 827 N.Y.S.2d 683, 860 N.E.2d 985 [2006],cert. denied552 U.S. 918, 128 S.Ct. 277, 169 L.Ed.2d 202 [2007];compare Hurd v. Hurd, 66 A.D.3d 1492, 1493, 885 N.Y.S.2d 655 [2009] ).
ORDERED that the order is affirmed, with costs.
MERCURE, J.P., ROSE and EGAN JR., JJ., concur.