Ordered that the order is affirmed, with costs.
The defendant correctly contends that its counterclaim to recover damages for unjust enrichment was proper despite the existence of a contract between the parties ( see Morales v. Grand Cru Assoc., 305 AD2d 647; Tridee Assoc. v. New York City School Constr. Auth., 292 AD2d 444, 445). However, the defendant failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 NY2d 320), since triable issues of fact exist as to whether "it would be against equity and good conscience to permit [the respondent, its insured,] to retain the benefit" it received from the defendant's payment of real estate taxes and insurance payments on the subject property for which the defendant issued a title insurance policy ( Lake Minnewaska Mtn. Houses v. Rekis, 259 AD2d 797, 798).
The defendant's remaining contentions are without merit.