                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   522594
________________________________

MALTA PROPERTIES 1, LLC,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

TOWN OF MALTA,
                    Respondent.
________________________________


Calendar Date:   September 15, 2016

Before:   Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


      Horigan, Horigan & Lombardo, PC, Amsterdam (James A.
Lombardo of counsel), for appellant.

      Thomas W. Peterson, Town Attorney, Round Lake, for
respondent.

                             __________


Aarons, J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered April 22, 2015 in Saratoga County, which, among other
things, searched the record and granted partial summary judgment
to defendant.

      In 2006, defendant adopted the findings in a generic
environmental impact statement (hereinafter GEIS) that was
commissioned for the purpose of identifying, among other things,
infrastructure and roadway improvements that would be needed as a
consequence of anticipated growth and development in the
community. As a means to equitably spread the cost for these
capital improvements, the GEIS provided for the assessment of
mitigation fees to developers. The amount of a mitigation fee
would be proportionate to the impact that a particular
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developmental project would have to an area. The mitigation fees
were placed in a fund from which monies would be used to pay for
the capital improvements identified in the GEIS.

      Plaintiff, a developer, planned to build a CVS pharmacy at
a commercial location. In February 2009, plaintiff maintains
that defendant agreed to waive the mitigation fee to be assessed
to plaintiff, which was estimated to be $115,752, and, in
exchange, plaintiff would make improvements at the intersection
by Route 9 and Kendall's Way – one of the areas identified in the
GEIS for improvement. Plaintiff anticipated that such
improvements to the intersection would cost $113,406. After
construction began, however, plaintiff was required to make
additional improvements, which resulted in plaintiff having to
incur additional costs of $287,684. Plaintiff subsequently
commenced this action to recover only those additional costs,
emphasizing that it was not seeking to recover for work
contemplated under the original agreement.

      Following discovery, defendant moved for summary judgment
and plaintiff cross-moved for similar relief. Supreme Court
denied defendant's motion based upon its failure to include a
copy of the pleadings as part of its motion. Supreme Court also
denied plaintiff's cross motion but, upon a search of the record
of the cross motion, granted defendant partial summary judgment
and dismissed the claims for unjust enrichment, quantum meruit
and the imposition of an improper tax. Plaintiff appeals.

      We agree with plaintiff that Supreme Court, upon a search
of the record, erred in dismissing the unjust enrichment cause of
action. A claim of unjust enrichment requires that the plaintiff
establish that the defendant was enriched, the enrichment came at
the expense of the plaintiff, and permitting the defendant to
retain what the plaintiff seeks to recover contravenes equity and
good conscience (see Georgia Malone & Co., Inc. v Rieder, 19 NY3d
511, 516 [2012]; Land Man Realty, Inc. v Weichert, Inc., 94 AD3d
1221, 1222-1223 [2012]). The essential inquiry is "whether it is
against equity and good conscience to permit the defendant to
retain what is sought to be recovered" (Paramount Film Distrib.
Corp. v State of New York, 30 NY2d 415, 421 [1972], cert denied
414 US 829 [1973]).
                              -3-                522594

      The record discloses triable issues of fact as to whether
the additional work performed by plaintiff, which led to the
increased costs, came at defendant's direction. There is no
dispute that some of the additional work requirements, such as
intersections that complied with the Americans with Disabilities
Act and poles that could support required traffic signal heads,
were imposed by the Department of Transportation (hereinafter
DOT). The testimony and documentary evidence, however, reveal
that other additional requirements, such as changes to the
minimum turning radius and pedestrian amenities at the
intersection, extending a water line extension and obtaining a
cross-access easement, may have derived from defendant's behest
(see Engineering & Tech. Resources, Inc. v Xcel Dev. Corp., 139
AD3d 661, 662-663 [2016]). Furthermore, until plaintiff
completed all of the additional requirements, including those
imposed by DOT, defendant would not issue a certificate of
occupancy. Because a question of fact exists regarding whether
defendant or DOT required plaintiff to construct improvements
that went above and beyond what was originally envisioned in
February 2009, Supreme Court should not have dismissed the unjust
enrichment claim (see Branch Servs., Inc. v Cooper, 102 AD3d 645,
647-648 [2013]).

      We similarly conclude that Supreme Court should not have
dismissed the quantum meruit cause of action. "To prevail on
that cause of action, a party must prove (1) performance of
services in good faith, (2) acceptance of the services by the
person for whom they were rendered, (3) an expectation of
compensation, and (4) the reasonable value of the services
performed" (Precision Founds. v Ives, 4 AD3d 589, 591 [2004]
[internal quotation marks and citation omitted]). A question of
fact exists as to whether plaintiff expected to be compensated
from the GEIS funds for the additional improvements to the
intersection that were requested or required by defendant.
Contrary to defendant's assertion, the fact that plaintiff waited
until after the completion of these additional improvements to
seek reimbursement does not defeat its claim under a quantum
meruit theory (see John Anthony Rubino & Co., CPA, P.C. v Swartz,
                                 -4-                  522594

84 AD3d 599, 600 [2011]).1

      We disagree, however, with plaintiff that the additional
costs it incurred amounted to an improper tax and, thus, we find
no error in Supreme Court's dismissal of the cause of action
alleging the imposition of an improper tax (see generally Jewish
Reconstructionist Synagogue of N. Shore v Incorporated Vil. of
Roslyn Harbor, 40 NY2d 158, 162 [1976]).

         Peters, P.J., Egan Jr., Lynch and Rose, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendant partial
summary judgment dismissing the unjust enrichment and quantum
meruit causes of action, and, as so modified, affirmed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     1
        Defendant's contention that plaintiff's unjust enrichment
and quantum meruit causes of action should be dismissed as
duplicitous of the breach of contract cause of action is raised
for the first time on appeal and, thus, unpreserved for review
(see Van Etten Oil Co., Inc. v Aero Star Petroleum, Inc., 131
AD3d 740, 742 [2015]).
