                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:    April 7, 2016                  519798
                                                       520749
________________________________

ALYSIA SILIPO,
                      Respondent,
     v                                      MEMORANDUM AND ORDER

BRIAN WILEY et al.,
                    Appellants.
________________________________


Calendar Date:   February 19, 2016

Before:   Peters, P.J., Garry, Rose, Lynch and Clark, JJ.

                             __________


     John T. Casey Jr., Troy, for appellants.

      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert
A. Rausch of counsel), for respondent.

                             __________


Clark, J.

      Appeals (1) from an order of the Supreme Court (Gilpatric,
J.), entered August 12, 2014 in Ulster County, which denied
defendants' motion for summary judgment dismissing the complaint,
and (2) from a judgment of said court, entered December 10, 2014
in Ulster County, upon a verdict rendered in favor of plaintiff.

      Plaintiff was hired by defendant Wiley Electronics, LLC
(hereinafter the business) as a part-time clerk and was
thereafter promoted to vice-president. In 2011, the owner of the
business, defendant Brian Wiley, informed plaintiff of a possible
sale of the business's assets and requested plaintiff's
assistance in closing the sale. According to plaintiff, Wiley
promised to pay her compensation over and above her salary if she
assisted with the sale – a task that went beyond the scope of her
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ordinary job duties – and she put substantial time and effort
into the closing of the sale in reliance upon that promise. The
business's assets ultimately sold for $13.1 million. Shortly
after the closing, plaintiff and Wiley traveled to Texas for
business and, during the course of their trip, Wiley purportedly
stated, upon plaintiff's inquiry, that plaintiff would be
compensated for her assistance with the sale "when [she]
divorce[d] [her] husband." Plaintiff also alleged that Wiley
kissed her and, despite her protests, grabbed her waist and
attempted to engage her in sexual relations. Wiley never awarded
plaintiff the alleged bonus and, following plaintiff's extended
leave from work, he terminated plaintiff's employment.

      Plaintiff1 commenced this action against defendants,
asserting causes of action for, as relevant here, unjust
enrichment and battery. Defendants joined issue and, following
discovery, moved for summary judgment dismissing the complaint.
Supreme Court denied defendants' motion in its entirety, and
defendants appealed. While defendants' appeal was pending, the
matter proceeded to trial,2 at the conclusion of which the jury
found in favor of plaintiff on her claims for unjust enrichment
and battery and awarded her $114,000 – to be apportioned equally
between defendants – on her unjust enrichment claim and $64,000
on her battery claim against Wiley.3 Supreme Court denied
defendants' motion to set aside the verdict and subsequently


     1
        Although plaintiff's spouse initially asserted a
derivative cause of action, he later withdrew that claim and the
caption was amended accordingly.
     2
        This Court denied defendants' motion to stay the trial
pending appeal (2014 NY Slip Op 88580[U]).
     3
        As for the remaining causes of action asserted in the
complaint, plaintiff withdrew her claims of intentional
infliction of emotion distress, quantum meruit, promissory
estoppel and disability discrimination prior to or during trial,
and the jury found in favor of defendants on her sexual
harassment, retaliation and assault claims.
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                                                  520749

entered judgment in favor of plaintiff.   Defendants appealed, and
these appeals ensued.

      Initially, we note that defendants' right to take a direct
appeal from the order denying their motion for summary judgment
terminated upon entry of the final judgment and, therefore,
defendants' appeal from that order must be dismissed (see Matter
of Aho, 39 NY2d 241, 248 [1976]). Nevertheless, the issues
raised on the appeal from the order denying defendants summary
judgment are brought up for review on the appeal from the final
judgment (see CPLR 5501 [a] [1]; State of New York v 158th St. &
Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1295 n 2 [2012], lv
denied 20 NY3d 858 [2013]).4

      We first address defendants' contention that Supreme Court
should have dismissed plaintiff's unjust enrichment claim as
barred by the statute of frauds. Pursuant to General Obligations
Law § 5-701 (a) (10), "a contract to pay compensation for
services rendered in . . . negotiating the purchase [or] sale
. . . of a business opportunity, business, its good will,
inventory, fixtures or an interest therein" is void "unless it or
some note or memorandum thereof be in writing, and subscribed by
the party to be charged therewith, or by his [or her] lawful
agent." The statute is intended to protect against "false or
exaggerated claims" (Freedman v Chemical Constr. Corp., 43 NY2d
260, 267 [1977]; see JF Capital Advisors, LLC v Lightstone Group,
LLC, 25 NY3d 759, 764-765 [2015]) and "applies to various kinds
of intermediaries who perform limited services in the
consummation of certain kinds of commercial transactions"
(Freedman v Chemical Constr. Corp., 43 NY2d at 266; see Ostrove v
Michaels, 289 AD2d 211, 213 [2001]). Here, defendants'


     4
        Although defendants raised arguments in their appeal from
the denial of their summary judgment motion that relate to those
of plaintiff's claims that were withdrawn or rejected by the
jury, we need only address defendants' arguments relating to the
claims on which plaintiff prevailed (see Wilson v Hallen Constr.
Corp., 40 AD3d 986, 988 [2007]; Miranda v Schmidt & Sons, 200
AD2d 378, 379 [1994]).
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                                                 520749

submissions on their motion and the proof presented at trial
established that plaintiff was defendants' employee prior to and
through her participation in the sale of the business, with a
scope of responsibilities reaching beyond her role in that
transaction, and that she was seeking to recover a "bonus" that
Wiley allegedly promised her for assuming greater employment
responsibilities. Under these circumstances, Supreme Court
properly determined that plaintiff's unjust enrichment claim was
not barred by General Obligations Law § 5-701 (a) (10) (see
Venetis v Stone, 81 AD3d 503, 503 [2011]; Kuo v Wall St. Mtge.
Bankers, Ltd., 65 AD3d 1089, 1089-1090 [2009]; Murphy v CNY Fire
Emergency Servs., 225 AD2d 1034, 1035 [1996]; Super v Abdelazim,
108 AD2d 1040, 1041-1042 [1985]).

      Defendants also assert that plaintiff's unjust enrichment
claim should have been dismissed as a matter of law at the
summary judgment stage or upon their motion to set aside the
verdict. To prevail on a claim for unjust enrichment, a
plaintiff must establish that the defendant was enriched at his
or her expense and that "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]; see Mandarin Trading
Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]). "[T]he mere fact
that the plaintiff's activities bestowed a benefit on the
defendant is insufficient to establish a cause of action for
unjust enrichment" and courts will generally "'look to see if a
benefit has been conferred on the defendant under mistake of fact
or law, if the benefit still remains with the defendant, if there
has been otherwise a change of position by the defendant, and
whether the defendant's conduct was tortious or fraudulent'"
(Clark v Daby, 300 AD2d 732, 732 [2002], lv denied 100 NY2d 503
[2003], quoting Paramount Film Distrib. Corp. v State of New
York, 30 NY2d at 421).

      Here, although plaintiff ultimately bore the burden of
proof at trial, defendants, as the proponents of the motion, had
the initial burden of establishing their "entitlement to judgment
as a matter of law [by] tendering sufficient evidence to
eliminate any material issues of fact from the case" (Winegrad v
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New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Jacobsen v
New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]).
To that end, defendants proffered, among other things, portions
of plaintiff's and Wiley's deposition testimony and
correspondence between Wiley and his attorney in which Wiley
discussed giving plaintiff an interest-free loan. Plaintiff
testified at her deposition that Wiley promised her that she
would be "well compensated" for her work related to the sale of
the business and that, although Wiley initially referred to their
arrangement as a "retention loan," he thereafter referred to it
solely as a bonus. Plaintiff stated that she believed that Wiley
had abandoned his offer of an interest-free loan. In contrast,
Wiley maintained that he had only offered plaintiff an interest-
free loan. Given that the evidence defendants produced on the
motion revealed a factual dispute as to whether Wiley promised,
and plaintiff expected, compensation above and beyond her salary
for her role in the sale, defendants failed to demonstrate their
entitlement to summary dismissal of plaintiff's unjust enrichment
claim and their motion was properly denied in that regard (see
Weeks v St. Peter's Hosp., 128 AD3d 1159, 1161 [2015]).

      We also reject defendants' challenge to that aspect of the
jury's verdict relating to plaintiff's unjust enrichment claim as
not supported by sufficient evidence or against the weight of the
evidence. At trial, plaintiff testified that Wiley promised her
additional compensation for helping with the sale, that Wiley
proposed an interest-free "retention loan," but then ceased any
discussions with respect to such loan and instead promised to pay
her "a big bonus" if the sale closed, and that defendants
received substantial proceeds from the sale as a result of her
efforts. Wiley's attorney testified that Wiley asked her to
prepare documents relating to an interest-free loan for
plaintiff, but that Wiley later told her to "forget" about the
loan. Despite Wiley's testimony that he never offered plaintiff
a bonus, the foregoing evidence was sufficient to support the
jury's conclusion that defendants were unjustly enriched as a
result of plaintiff's activities and that principles of equity
and good conscience warranted an award in plaintiff's favor.
Furthermore, the evidence did not so preponderate in defendants'
favor that the jury could not have reached its verdict on any
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                                                 520749

fair interpretation of the evidence (see Lolik v Big V
Supermarkets, 86 NY2d 744, 746 [1995]; Neissel v Rensselaer
Polytechnic Inst., 54 AD3d 446, 450 [2008], lv denied 11 NY3d 716
[2009]).

      We are also unpersuaded by defendants' contentions that
Supreme Court should have dismissed plaintiff's battery claim at
the summary judgment stage. To recover for battery, a plaintiff
"must prove that there was bodily contact, that the contact was
offensive, that is, 'wrongful under all the circumstances,' and
that [the] defendant intended to make the contact" (Goff v
Clarke, 302 AD2d 725, 726 [2003], quoting Zgraggen v Wilsey, 200
AD2d 818, 819 [1994]; see Cicci v Chemung County, 122 AD3d 1181,
1183 [2014], lv dismissed and denied 25 NY3d 1062 [2015]). The
plaintiff is required to show that the defendant intended to make
the contact, not that he or she "'intended to cause injury as a
result of the intended contact'" (Messina v Alan Matarasso, M.D.,
F.A.C.S., P.C., 284 AD2d 32, 35 [2001], quoting Zgraggen v
Wilsey, 200 AD2d at 819). Defendants' submissions on their
motion for summary judgment clearly established the existence of
a factual dispute as to whether Wiley made offensive contact with
plaintiff's person. Accordingly, as defendants failed to make a
prima facie showing of entitlement to summary judgment, Supreme
Court properly denied defendants' motion for summary dismissal of
plaintiff's battery claim (see Alvarez v Prospect Hosp., 68 NY2d
320, 324 [1986]).

      As for defendants' challenge to the sufficiency of the
evidence supporting the jury's determination of liability and
damages on plaintiff's battery claim, defendants failed to
preserve their challenge for our review when they moved for
judgment as a matter of law or to set aside the verdict (see
Harden v Faulk, 111 AD3d 1380, 1380-1381 [2013], lv denied 23
NY3d 907 [2014]; Tomaszewski v Seewaldt, 11 AD3d 995, 995 [2004];
see also Miller v Miller, 68 NY2d 871, 873 [1986]). Further,
contrary to defendants' assertions, the award of $64,000 in
compensatory damages on the battery claim did not deviate
materially from what would be considered reasonable compensation
under the circumstances (see CPLR 5501 [c]). Plaintiff presented
ample evidence, including testimony from her primary care
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                                                   520749

provider and treating psychologist, to establish that she
experienced debilitating psychological symptoms for several
months following her trip to Texas and that she developed
posttraumatic stress disorder and adjustment disorder with
anxiety, both of which were causally related to the offensive
contact.

      Defendants' remaining arguments, to the extent that they
have not been addressed, are either unpreserved or lacking in
merit.

     Peters, P.J., Garry, Rose and Lynch, JJ., concur.



      ORDERED that the appeal from the order entered August 12,
2014 is dismissed, with costs.

      ORDERED that the judgment entered December 10, 2014 is
affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
