The motion court properly granted the Kadem defendants summary judgment on their second counterclaim for unjust enrichment since they paid plaintiffs $90,000 for a benefit, i.e., a transfer of office space, they never received (see Nakamura v. Fujii, 253 A.D.2d 387, 390).
However, the Kadem defendants' first counterclaim to recover in quantum meruit for expenditures made by them to facilitate plaintiffs' move to and occupancy of a new office space was properly dismissed since plaintiffs never acquired legal possession of the new office space and, consequently, did not benefit from defendants' expenditures (see Metro. Elec. Mfg. Co. v. Herbert Constr. Co., Inc., 183 A.D.2d 758, 759; cf. Aluminum Fair, Inc. v. Abdella, 90 A.D.2d 603).
The court also properly dismissed the third counterclaim seeking legal fees since the underlying agreement upon which such claim was based was unenforceable and there was no showing that the provision was severable (see e.g. Christian v. Christian, 42 N.Y.2d 63, 73).
Finally, the court properly denied leave to amend the complaint. Plaintiffs' complaint having been previously dismissed on summary judgment in a prior, unappealed order, there was no basis for a motion for its amendment; there was no complaint left before the court to amend. In any event, even if plaintiffs' motion to amend had been procedurally proper, we would still affirm its denial since the proposed amendments are plainly without merit (see Non-Linear Trading Co. v. Braddis Assocs., Inc., 243 A.D.2d 107, 117).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
Motion seeking leave to strike reply brief and to impose sanctions denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.