ADAM SEIDEN
ADAM SEIDEN, J.
Plaintiff brought this commercial claims action to recover one thousand nine hundred twenty five dollars and sixty six cents ($1,925.66) alleging a breach of contract or warranty by defendant. Plaintiff entered into a contract with Murville and Sabrina Dixon to provide real estate tax assessment reduction services for their property at 90 Bateman Place, Mount Vernon, New York. While the reassessment process was going forward, the Dixons decided to sell their home. The broker's memo noted the following:
“Property is a short sale—subject to seller's lender's approval. Sold “as is”. “Tax Grievance in process—Buyer agrees to pay Tax Reduction Company fifty percent 50% of tax reduction as a fee for their services.”
The defendant herein entered into a contract to purchase the premises. The contract did not refer to or mention the above noted condition. The real estate broker stated that during the contract period defendant herein, as purchaser of the property, was told of his responsibility to pay for the assessment services and verbally agreed to do so. Defendant denies seeing the broker's memo and stated that he is bound only by the contract.
At the closing, the plaintiff was not paid as a cost of sale (as is usually done in a short sale transaction) such as transfer taxes etc. The sellers received no money as all money in excess of costs went to the holder of the mortgage. The defendant herein refused to pay the defendant's fee as it was not part of his contract with the sellers.
It is clear to this Court that there is no privity of contract between the parties to this litigation (Mandarin Trading Ltd v. Wildenstein, 16 NY3d 173 (2011); Sperry v. Crompton Corp, 8 NY3d 204 (2007)). Further, the contract of sale contains a merger clause which means that the entire understanding of the parties and all terms of sale, are within the contract (Primex Int'l Corp v. Wal–Mart Stores, 89 N.Y.2d 594, 599–600 (1997); Restatement (Second) of Contracts § 216, comment c). As a result, the brokers memo and the discussions between the broker and buyer (defendant herein) are not part of the contract. “A completely integrated contract precludes extrinsic proof to add to or vary its terms” and no obligations flow from those peripheral communications ( Id. (citing W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162). The plaintiff has no basis to obtain relief based upon contract or warranty as claimed in this proceeding.
However, this Court is statutorily charged with doing substantial justice between the parties in the small claims part (Uniform City Court Act § 1804). The Court will not allow the defendant herein to be unjustly enriched at plaintiff's expense. “Unjust enrichment is a quasi-contract theory of recovery, and is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned” (IDT Corp v. Morgan Stanley, 12 NY3d 132 (2009)). Plaintiff must demonstrate that the other party was enriched, at plaintiff's expense, and that it is against equity and good conscience to permit the defendant to retain services without compensation to plaintiff. Privity is not required for an unjust enrichment claim (Mandarin Trading Ltd v. Wildenstein, 16 NY3d 173 (2011); Sperry v. Crompton Corp, 8 NY3d 204 (2007)).
Here, the Court finds that the services were provided by plaintiff and a benefit was gained by defendant. A review of the facts show that neither party acted in a truly business like manner and they should share the cost of remediation of the problems created.
Plaintiff should have insisted upon a clause in the sales contract or a separate writing from the buyer (defendant) or should have ceased to provide services. Defendant should not be allowed to take advantage of this plaintiff with, as is credibly found by this Court, knowledge of his responsibility. Plaintiff should not pay the full price for the seller's failure to put a clause in the contract.
Judgment for plaintiff in the sum of nine hundred eighty seven dollars and eighty three cents ($987.83).
The above constitutes the decision and order of the Court.
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